Covenants of the Company. The Company covenants and agrees with the several Underwriters that: (a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof. (b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus. (c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request. (d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law. (e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates. (f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act. (g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee. (h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter. (i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder). (j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request. (k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement. (l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions. (m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Consumer Portfolio Services Inc)
Covenants of the Company. The In further consideration of the agreements of the Underwriters herein contained, the Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the The Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing amendments have been declared effective. If any information previously shall have been omitted at the time of effectiveness of the Registration Statement therefrom in reliance upon Rule 430A. Prior to 430A or Rule 430C, the termination Company, at the earliest possible time, will furnish the Representative with a copy of the offering of Prospectus to be filed by the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed Company with the Commission pursuant to comply with Rule 424(b); (iii) when, prior to termination of Rule 430A and Rule 430C under the offering of Act and, if the Certificates, any amendment Representative do not object to the Registration Statement shall have been filed or become effective; (iv) of any request by contents thereof, will comply with such Rules. Upon compliance with such Rules, the Commission for any amendment of Company will so advise the Registration Statement or supplement Representative promptly. The Company will advise the Representative and counsel to the Final Prospectus or for any other additional information; (v) Underwriters promptly of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS , or of any notification with respect to of the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding proceedings for such that purpose. CPS , and will use its best efforts also advise the Representative and counsel to prevent the issuance Underwriters promptly of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each request of the UnderwritersCommission for amendment or supplement of the Registration Statement, of the Preliminary Prospectus, or of the Prospectus, or for its approval after reasonable notice thereofadditional information, such approval and the Company will not to be unreasonably withheld file any amendment or delayed, a copy of any post-- effective amendment supplement to the Registration Statement, any to the Preliminary Prospectus or to the Prospectus (including a prospectus filed pursuant to Rule 462(b) Registration Statement proposed to be filed 424(b)), or a copy of file any document proposed to be filed under the 1934 Exchange Act before the termination of the public offering of the Certificates Shares by the Underwriters if such document would be deemed to be incorporated by reference into in the Registration Statement Statement, if the Representative have not been furnished with a copy prior to such filing (with a reasonable opportunity to review such amendment or Final Prospectus.
(csupplement) The Company will deliver to, or upon if the order of, the Underwriters, from time Representative object to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably requestsuch filing. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final file any Issuer Free Writing Prospectus is as required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestRule 433.
(db) The Company willIf, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered in connection with sales by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur occurs as a result of whichwhich the Prospectus would include an untrue statement of a material fact, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes would omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law the Act or to file under the 1934 Exchange Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Exchange Act, the Company will promptly notify each of advise the Representative and counsel to the Underwriters thereof and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission Commission, at its expense, an appropriate amendment to the Registration Statement or supplement file such document which will correct such statement or omission or an amendment which will effect such compliance; and, if any Underwriter is required to deliver a prospectus after the effective date of the Registration Statement, the Company, upon request of the Representative, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act. The Company consents to the Final Prospectus or (ii) prepare and fileuse, or cause to be prepared and filed, in accordance with the Commission (at the expense provisions of the CompanyAct and with the Blue Sky Laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, of the Preliminary Prospectus. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated April 6, 2006
(c) an If necessary or appropriate filing under in connection with the 1934 Act which offer and sale of the Shares, the Company shall be incorporated by reference file a Rule 462(b) Registration Statement in the Final Prospectus manner prescribed by the Act so that such Rule 462(b) Registration Statement shall become effective upon filing.
(d) Neither the Final Prospectus Company nor any Subsidiary will, prior to the Second Closing Date, if any, acquire any of the Common Stock nor will the Company declare or pay any dividend or make any other distribution upon its Common Stock payable to stockholders of record on a date prior to such earlier date, except as so amended or supplemented will not, described in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawProspectus.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicableits security holders, but no later than sixteen months after and deliver to the Effective DateRepresentative, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying Company (which will satisfy the provisions of Section 11(a) of the Act Act) covering a period of twelve months beginning after the effective date (including as defined in Rule 158 promulgated thereunder).
(j158(c) So long as any under the Act) of the Certificates are outstandingRegistration Statement and the Rule 462(b) Registration Statement, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersif any, and deliver to the Underwriters during such period, (i) as soon as they are availableis reasonably practicable after the termination of such twelve-month period but in any case not later than March 31, copies of any reports and financial statements 2007. Any document or information filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and available on ▇▇▇▇▇ shall cause be deemed to be delivered for purposes of this section.
(f) The Company will apply the respective computer records net proceeds from the sale of the Shares to be sold by it hereunder for the purposes set forth in the Prospectus, and will timely comply with Rule 463 under the Act with respect to the disclosure of the use of such net proceeds.
(g) The Company will cooperate with the Representative and counsel to the Underwriters in qualifying or registering the Shares for sale under the Blue Sky Laws of such jurisdictions as the Representative designates, and will continue such qualifications or registrations in effect so long as reasonably requested by the Representative to effect the distribution of the Shares. The Company shall not be required to: (i) qualify as a foreign corporation, (ii) file a general consent to service of process in any such jurisdiction where it is not presently qualified; or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject. In each jurisdiction where any of the Shares shall have been qualified as provided above, the Company will file such reports and statements as may be required to continue such qualification for a period of not less than one year from the date of the Prospectus. The Company shall promptly prepare and file with the Commission, from time to time, such reports as may be required to be filed by the Act and the Exchange Act, and the Company shall comply in all respects with the undertakings given by the Company in connection with the qualification or registration of the Shares for offering and sale under the Blue Sky Laws.
(h) The Company shall deliver the requisite notice of issuance to Nasdaq and shall take all necessary or appropriate action within its power to maintain the authorization for trading of the Common Stock as a Nasdaq National Market security, or take such action to authorize the Common Stock for listing on the New York Stock Exchange or the American Stock Exchange, for a period of at least thirty-six months after the date of the Prospectus.
(i) The Company hereby agrees that, without the prior written consent of the Representative on behalf of the Underwriters, it will not, during the period ending 90 days after ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated April 6, 2006 the date of the Prospectus, offer, sell, transfer, pledge, contract to sell, transfer or pledge any shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of Common Stock, whether any of these transactions are to be settled by delivery of Common Stock or other securities, in cash or otherwise, or publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement. The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be sold hereunder, (b) the grant of options to purchase shares of Common Stock pursuant to the Company’s stock option plans or the sale of shares of capital stock to employees pursuant to the Company’s employee stock purchase plans or (c) 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 hereof of which the Underwriters have been advised in writing. Notwithstanding the foregoing, if (1) during the last 17 days of the 90 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 90 day restricted period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the 90 day period, the restrictions imposed by the preceding paragraph of 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. The Company shall promptly notify the Representative and the Selling Shareholders of any earnings release, news or event that may give rise to an extension of the initial 90 day restricted period.
(j) The Company will maintain a transfer agent and, if required by law or the rules of Nasdaq or any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(k) Prior to the First Closing Date, the Company will not issue any press release or other communications directly or indirectly or hold any press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company, without your prior consent, which shall not be unreasonably withheld, unless in the judgment of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivablesits counsel, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivablesnotification to you, other than as expressly permitted such press release or communication is required by the Pooling and Servicing Agreementlaw.
(l) To If the extentsale to the Underwriters is not consummated for any reason other than termination of this Agreement pursuant to Section 14 hereof, or Section 16(a), (c) or (d) hereof, without limiting any other rights the Underwriters may have, the Company agrees to reimburse the Underwriters upon demand for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) that shall have been incurred by the Underwriters in connection with the proposed purchase and sale of the Shares, and the provisions of Sections 8 and 13 hereof shall at all times be effective and apply. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated April 6, 2006
(m) The Company will use its reasonable best efforts to satisfy or cause to be satisfied the conditions to the obligations of the Underwriters in Section 9 hereof.
(n) The Company represents and agrees that it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus, without the prior written consent of the Representative. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents 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 applicable requirements of Rule 433 of the Act, including timely Commission filing where required, legending and record keeping.
(o) Neither the Company nor any Subsidiary will, prior to the Second Closing Date, if any, that incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ratings provided ordinary course of business, or enter into any transaction with respect to the Certificates by either an “affiliate,” as defined in Rule 405 of the Rating Agencies Act, which is conditional upon required to be disclosed in the furnishing of documents Prospectus, the Preliminary Prospectus or the taking Registration Statement pursuant to Item 404 of any other actions by Regulation S-K under the Company Act, except as described in the Prospectus, the Preliminary Prospectus or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsRegistration Statement.
(mp) On Neither the Company nor any Subsidiary will, prior to the Second Closing Date, if any, acquire any of the Common Stock, except in connection with the exercise, vesting, forfeiture or termination of, or lapse of restrictions with respect to, awards granted pursuant to the terms of the Company’s equity incentive plans and the withholding or surrender of Common Stock to cover applicable taxes associated therewith, nor will the Company and CPS shall cause declare or pay any dividend or make any other distribution upon its Common Stock payable to shareholders of record on a date prior to such earlier date, except as described in the Certificate Insurer to issue Prospectus, the Policy to Preliminary Prospectus or the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each UnderwriterRegistration Statement.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine ▇▇▇.
(ec) The Company will cooperate endeavor, in cooperation with the Underwriters in endeavoring Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of this Agreement, the Act Company will not, without the Underwriters' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (including Rule 158 promulgated thereunderexcept for the Senior Notes issued pursuant to this Agreement).
(jf) So long As soon as practicable after the date of this Agreement, and in any of event within the Certificates are outstandingtime prescribed by Rule 424 under the 1933 Act, the Company will furnish to file the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant to and will advise the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership Representative of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementwill confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the several Underwriters that:
(a) CPS will use its best efforts to cause the The Registration Statement, if not effective at the Execution TimeStatement and any amendments thereto have become effective, and any amendment theretoif Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to become effective Rule 424(b) within the prescribed time period and will provide evidence reasonably satisfactory to the Representative of such timely filing. The Company will notify the Representative as soon as reasonably practicable thereafter or(and, if requested by the procedure Representative, will confirm such notice in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(bwriting) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (iii) of the Company's intention to file or prepare any amendments to the Registration Statement (including pursuant to Rule 462(b)), or any supplement, revision or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; and the Company shall use reasonable best efforts to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts If the Commission shall propose or enter a stop order at any time, the Company shall make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS possible. The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)) that materially differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or a copy after the effective date of the Registration Statement, or file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, to which the Representative shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) The Company shall comply with the Securities Act and the Exchange Act to permit completion of the distribution as contemplated in this Agreement, the Registration Statement and the Prospectus. If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act or the Exchange Act in connection with the sales of Shares, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time (i) to amend or supplement the Prospectus to comply with the Securities Act or the Rules and Regulations, or (ii) to file under the Exchange Act so as to comply therewith any document incorporated by reference in the Registration Statement or Final Prospectusthe Prospectus or in any amendment thereof or supplement thereto, in the case of clause (i) above, the Company will notify the Representative promptly and prepare and file with the Commission, an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Representative) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to, or upon the order of, the Underwriters, from time to time, as many copies each of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of and Underwriters' Counsel a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies copy of the Registration Statement Statement, including all consents and exhibits filed therewith and all documents incorporated by reference therein and all amendments thereto including all exhibits filed therewiththereto, and the Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments Prospectus or any amendment thereof or supplement thereto, as the Underwriters Representative may reasonably request. Prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City at such address(es) as the Representative specifies, and in such quantities as the Representative may reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as shall promptly deliver to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare to Underwriters' Counsel copies of the Preliminary Prospectus, and file, or cause to be prepared and filed, with the Commission an appropriate amendment Company consents to the Registration Statement or supplement to the Final Prospectus or (ii) prepare use and file, or cause to be prepared and filed, with the Commission (at the expense delivery of the CompanyPreliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) an appropriate filing under of the 1934 Act which Securities Act. The Company shall be incorporated by reference in also furnish to each of the Final Prospectus so that Underwriters copies of the Final Prospectus as so amended or supplemented will not, in the light requested by any of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriters.
(e) The Company will cooperate use its best efforts, in cooperation with the Underwriters in endeavoring Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as the Underwriters Representative may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesprocess.
(f) The Company shall will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not investlater than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), or otherwise use the proceeds received by an earnings statement of the Company from its sale and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Certificates in such a manner as would require Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, CPS or the Trust to register as an investment company under the 1940 ActRule 158).
(g) Until During the retirement period of 90 days from the date of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstfinal prospectus, the Company will deliver not, directly or indirectly, without prior written consent of the Representative, issue, sell, offer or agree to each Underwriter sell, grant any option for the annual sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or interest therein of the Company or of any of the Subsidiaries, and, other than for the Registration Statement, the Company will not file a registration statement under the Securities Act in connection with any of the foregoing by the Company or for any shareholder, except for registration statements of compliance on Form S-8 relating to employee benefit plans or Form S-4 relating to corporate reorganizations or other transactions under Rule 145, and the annual independent certified public accountantCompany will use its reasonable efforts to obtain the undertaking in substantially the form of Annex II hereto of each of its officers and directors listed on Schedule III not to engage in any of the aforementioned transactions on their own behalf for a period of ninety (90) days from the date of the Prospectus, other than the Company's reports furnished to sale of Shares hereunder and the Trustee Company's issuance of Common Stock upon (i) the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof; (ii) the exercise of currently outstanding options; and (iii) the grant and exercise of options under, or the issuance and sale of shares pursuant to to, employee stock option and equivalent employee benefit plans in effect on the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteedate hereof.
(h) The Company or CPS shall, will apply the net proceeds it receives from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory Shares as set forth under the caption "Use of Proceeds" in form and substance to each Underwriterthe Prospectus.
(i) The Company will cause use its best efforts to list and maintain the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement listing of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Shares on NYSE.
(j) So long as any of The Company, during the Certificates are outstanding, period when the Company will furnish Prospectus is required to be delivered under the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust Securities Act or the Company Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Securities Exchange Act of 1934, as amended, within the time periods required by the Exchange Act and (ii) such additional information concerning the business rules and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On regulations thereunder or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions exemptive order issued by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsCommission.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Central Pacific Financial Corp)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representatives orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representatives sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of each amendment and ▇▇▇▇▇▇ment to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchasertimely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company shall not misleadingfile such documents or amendments without also furnishing copies thereof prior to such filing to the Representatives and Dewey Ballantine LLP.
(c) The Company will endeavor, orin cooperation with the Underwriters, if ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇enior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Representatives may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is necessary at any time not so qualified or to amend file a consent to service of process or supplement the Final Prospectus to file annual reports or to comply with any law or other requirements in connection with such qualification deemed by the Company to file be unduly burdensome.
(d) The Company will make generally available to its security holders as soon as practicable but not later than 45 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1934 Act any document which would be deemed to be incorporated by reference in 1933 Act) covering a twelve-month period beginning not later than the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawRegistration Statement.
(e) The Company will cooperate with use its best efforts to effect the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution listing of the Certificates, except that Senior Notes on the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesNew York Stock Exchange.
(f) The Company shall not investAs soon as practicable after the date of this Agreement, or otherwise use and in any event within the proceeds received time prescribed by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company Rule 424 under the 1940 1933 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and file the Final Supplemented Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant and to advise the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership Representatives of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementto confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company acknowledges, covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the The Registration Statement, if not effective at the Execution TimeStatement and any amendments thereto have been declared effective, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) a Final Prospectus containing information previously omitted at pursuant to Rule 424(b) within the prescribed time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior period and will provide evidence satisfactory to the termination Representative of such timely filing.
(b) The Company will notify the offering of Representative immediately (and, if requested by the CertificatesRepresentative, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any confirm such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not notice in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing): (i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or for any additional information, (iii) of the Company’s intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Final Registration Statement, the Sale Preliminary Prospectus or for any other additional information; the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; and the Company shall make every effort to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose to enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS possible. The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Sale Preliminary Prospectus or the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement or a copy of file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which the Representative shall object in writing after being timely furnished in advance a copy thereof. The Company will provide the Representative with copies of all such amendments, filings and other documents prior to any filing or Final Prospectusother publication thereof and also afford the Representative a reasonable opportunity and time to review and comment thereon.
(c) The Company will deliver to, or upon shall comply with the order ofSecurities Act, the Underwriters, from time Exchange Act and all applicable Rules and Regulations to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies permit completion of the Final Prospectusdistribution as contemplated in this Agreement, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewiththe Prospectus. If, and will deliver at any time when a prospectus relating to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably Shares is required to be requested), including documents filed delivered under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Securities Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement all applicable Rules and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer Regulations in connection with the sale sales of any CertificatesShares, any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time of delivery to the Final Prospectus is delivered to a purchaser, not misleading, oror if, if to comply with the Securities Act, the Exchange Act or the Rules and Regulations, it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or Registration Statement, or to file under the 1934 Act any document which would be deemed is an exhibit to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActProspectus or in any amendment thereof or supplement thereto, the Company will notify the Representative promptly notify each of and prepare and file with the Underwriters Commission, subject to Section 4(a) hereof, an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Representative) which will correct such statement or omission or which will effect such compliance and will promptly either (i) prepare and file, or cause use its reasonable best efforts to be prepared and filed, with the Commission an appropriate have any amendment to the Registration Statement declared effective as soon as possible.
(d) The Company will promptly deliver to the Underwriters and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Sale Preliminary Prospectus, the Prospectus, the Registration Statement, any Permitted Free Writing Prospectus (as defined below, if approved in writing by the Representative as provided for in Section 4(cc) hereto) and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., New York time, on the Final Prospectus or (ii) prepare business day next succeeding the date of this Agreement and filefrom time to time thereafter, or cause to be prepared and filed, the Company will furnish the Underwriters with the Commission (at the expense copies of the Company) an appropriate filing under Prospectus in New York City in such quantities as the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriters may reasonably request.
(e) The Company will cooperate with consents to the use and delivery of the Sale Preliminary Prospectus by the Underwriters in endeavoring accordance with Rule 430 and Section 4(b) of the Securities Act.
(f) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2).
(g) During the period of 180 days after the effective date of the Registration Statement, neither the Company nor any of its Affiliates will directly or indirectly, take any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(h) The Company will use its reasonable best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions jurisdictions, domestic or foreign, as the Underwriters Representative may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in under the laws of any such jurisdiction to which state where it is not presently qualified or where it would be subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents taxation as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterforeign corporation.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders and to the Underwriters as soon as practicable, but no in any event not later than sixteen twelve (12) months after the Effective Dateeffective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an audited earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Company complying with Section 11(a) of the Securities Act and the Rules and Regulations (including including, at the option of the Company, Rule 158 promulgated thereunder158).
(j) So long as any During the twelve (12) months following the Closing Date, without the consent of the Certificates are outstandingRepresentative which shall not be unreasonably withheld, the Company will furnish not file any registration statement relating to the Underwriters copies of all reports offer or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies sale of any reports and financial statements filed by or on behalf of the Trust or the Company Company’s securities, including any Registration Statement on Form S-8, except a Form S-8 filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition in connection with any of the Company as the Underwriter may from time to time reasonably request.
Company’s stock option plans. (k) On or before Each of the Closing DateCompany’s officers and directors and holders of Common Stock, Series A Preferred Stock and Series B Preferred Stock (collectively, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating “Lock-Up Parties”) shall, prior to the Receivables to be marked to show the Trustee's absolute ownership of the ReceivablesClosing, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent enter into a written “lock-up” agreement with the Trustee's ownership of such Receivables, other than Representative in the form in the form attached hereto as expressly permitted by the Pooling and Servicing AgreementAnnex IV.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A; and (ii) not file with the Commission any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b(A) Registration Statement unless CPS has furnished to each of which the Underwriters shall not previously have been advised and furnished with a copy for its review a reasonable period of time prior to the proposed filing and will not file any such proposed amendment or supplement as to which any of filing the Underwriters reasonably objects and shall not have given their consent or (B) which is not in compliance with the 1933 Securities Act Regulations. CPS or the rules and regulations of the Commission thereunder.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Underwriters (i) when of any request made by the Commission for amendment of the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or the institution or threat of any action, investigation or proceeding for that purpose; and or (viiii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for such that purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting or withdrawal thereof as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectuspossible.
(c) The Company will (i) on or before the Closing Date, deliver toto the Underwriters a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, or promptly upon the order offiling thereof, a signed copy of each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriter); (ii) as promptly as possible deliver to the Underwriters, from time to timeat such office as the Underwriters may designate, as many copies of any Preliminary Final the Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters ; and (iii) thereafter from time to time during the period when delivery of in which a Final Prospectus prospectus is required under by law to be delivered by an Underwriter or dealer, likewise send to the 1933 Act, Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Final ProspectusProspectus and of any amended prospectus, or as thereafter amended or supplementedfiled by the Company with the Commission, as the Underwriters may reasonably request. The Company will deliver to request for the Underwriters at or before purposes contemplated by the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestSecurities Act.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. If, orafter the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of the offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with opinion either of counsel for the 1933 Act Company or of counsel for the 1934 ActUnderwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will promptly notify each of forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and will promptly either (i) prepare and fileall dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, as from time to time amended or cause to be prepared and filedsupplemented, in connection with the Commission an appropriate sale of the Shares in accordance with the applicable provisions of the Securities Act and the applicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate with cooperate, when and as requested by you, in the Underwriters in endeavoring to qualify qualification of the Certificates Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or blue sky laws; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or file any general consent to service of process in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, from time to time, prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until The Company agrees to pay all costs and expenses incident to the retirement performance of the Certificatesobligations of the Company under this Agreement, or until such time as including, without limitation, all costs and expenses incident to (i) the preparation, printing and filing with the Commission and the NASD of the Registration Statement, any Preliminary Prospectus and the Prospectus; (ii) the furnishing to the Underwriters shall cease of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this Section 6 to maintain a secondary market in be so furnished; (iii) the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements printing of compliance this Agreement and the annual independent certified public accountant's reports furnished related documents delivered to the Trustee pursuant Underwriters; (iv) the preparation, printing and filing of all supplements and amendments to the Pooling Prospectus referred to in paragraph (d) of this Section 6; (v) the furnishing to you of the reports and Servicing Agreementinformation referred to in paragraph (j) of this Section 6; and (vi) the printing and issuance of stock certificates, as soon as such statements and reports are furnished to including the Trusteetransfer agent's fees.
(h) The Company agrees to reimburse you, for the account of the several Underwriters, for blue sky fees and related disbursements (including counsel fees and disbursements and cost of printing memoranda for the Underwriters) paid by or CPS shall, from for the date hereof through account of the Underwriters or their counsel in qualifying the Shares under state securities or blue sky laws and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any review of the conditions contained in this Agreement; and all actions taken offering by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each UnderwriterNASD.
(i) The Company will cause the Trust to make generally available to Certificateholders as As soon as practicable, but no in any event not later than sixteen months 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the rules and regulations promulgated under the Securities Act, an earnings statement of that will be in the Trust covering a period of at least twelve consecutive months beginning after such Effective Date detail required by, and satisfying will otherwise comply with, the provisions of Section 11(a) of the Securities Act (including and Rule 158 158(a) of the rules and regulations promulgated thereunder).
(j) So long as any During a period of three years after the Certificates are outstandingdate hereof, the Company will furnish to the Underwriters you, and to each Underwriter who may so request in writing, copies of all periodic and special reports furnished to shareholders of the Company and of all information, documents and reports filed with the Commission.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(l) The Company will not, directly or other communications (financial or otherwise) furnished or made available to Certificateholdersindirectly, and deliver to without the Underwriters during such periodprior written consent of ▇▇ ▇▇▇▇▇▇▇▇▇ & Co., (i) as soon as they are available, copies of any reports and financial statements filed by or LLC on behalf of the Trust Underwriters, issue, offer, sell, grant any option to purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 180 days following the Company with date of the Commission Prospectus, except pursuant to this Agreement and except for issuances pursuant to the conversion of shares of the Company's Series A, Series B and Series C Convertible Preferred Stock outstanding on the date hereof, the exercise of stock options outstanding on or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof, the exercise of warrants outstanding on the date hereof, and except as contemplated by the Prospectus.
(m) The Company will cause the Shares to be duly included for quotation on the Nasdaq National Market prior to the Closing Date.
(n) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(o) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(p) The Company will timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Rules, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Securities Act, the Rules, the Exchange Act and the rules and regulations promulgated thereunder.
(q) The Company is familiar with the Investment Company Act of 19341940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company was not and will not be an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(iir) such additional information concerning The Company either has caused to be delivered to you or will cause to be delivered to you prior to the business effective date of the Registration Statement a letter (the "Lock-Up Agreement") from each of the Company's directors, officers and financial condition a significant majority of the shareholders of the Company as stating, among other things, that such person agrees that he, she or it will not, without the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and prior written consent of ▇▇ ▇▇▇▇▇▇▇▇▇ shall cause & Co., LLC, for a period of 180 days after the respective computer records date of the Company and CPS and Samco relating Prospectus, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock, or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the Receivables right to be marked to show the Trustee's absolute ownership receive shares of the ReceivablesCommon Stock, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivableswhether now owned or hereinafter acquired, other than as expressly permitted owned directly by the Pooling and Servicing Agreement.
undersigned (lincluding holding as a custodian) To the extent, if any, that the ratings provided or with respect to which the Certificates by either undersigned has beneficial ownership within the rules and regulations of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents Securities and take any such other actionsExchange Commission.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Briazz Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective So long as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period shall remain in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Acteffect, the Company will promptly notify each (a) defend the right, title and interest of the Underwriters Agent, for the benefit of the Lenders and will promptly either the Lessor, in the Collateral against the claims and demands of all Persons; (ib) prepare not amend, modify, or waive any of the terms and fileconditions of, or settle or compromise any claim in respect of, any Collateral in a manner which would materially adversely affect the interests of the Agent, for the benefit of the Lenders and the Lessor; (c) not sell, assign, transfer, or otherwise dispose of, or grant any option with respect to, or pledge or otherwise encumber, or release, any of the Collateral or any interest therein except in a manner whereby the Agent alone would be entitled to receive the proceeds therefrom; (d) notify the Agent monthly of any default that continues beyond any applicable notice or grace period under any Pledged Mortgage Loan which has Warehousing Collateral Value; (e) maintain, or cause to be prepared maintained, in its chief executive office or in the offices of a computer service bureau approved by the Agent, for the processing of Mortgage Notes and filedMortgage-backed Securities, with originals, or copies if the Commission an appropriate amendment original has been delivered to the Registration Statement or supplement Agent, of its Mortgage Notes and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other records, information and data, relating to the Final Prospectus or (ii) prepare Collateral, and file, or cause to be prepared and filed, with give the Commission (at the expense Agent written notice of the Company) an appropriate filing under the 1934 Act which shall place where such records, information and data will be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate maintained; and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from maintain sufficient documentary evidence in its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided files with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPSeach Pledged Mortgage Loan to substantiate compliance with all applicable federal, CPS shallstate and local laws, or shall cause the Company toregulations and rules, furnish such documents and take any such other actionsincluding but not limited to those specified in Section 5(h) hereof.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatUnderwriter as follows:
(a) CPS The Company will use its best efforts to cause notify the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(bUnderwriter promptly (i) a Final Prospectus containing information previously omitted at of the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of when the Registration Statement or any post-effective amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have to the Prospectus or the Sale Preliminary Prospectus has been filed with the Commission pursuant to Rule 424(b)filed; (iii) when, prior to termination of the offering receipt of any comments from the Certificates, any amendment to the Registration Statement shall have been filed or become effectiveCommission; and (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Registration Statement, Prospectus or for any other the Sale Preliminary Prospectus or additional information; . If the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A, if applicable. If the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b). The Company will not file any amendment or supplement to the Registration Statement, Prospectus or the Sale Preliminary Prospectus which is not in compliance with Sections 424(b), 430A or 434 of the Act or to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy thereof a reasonable time prior to the filing.
(vb) The Company will advise the Underwriter, promptly after the Company receives notice or obtains knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution Statement, of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates Common Shares for offering or sale in any jurisdiction or quoted for trading on the Nasdaq National Market, or of the initiation or, to the Company’s knowledge, threatening of any proceeding for any such purpose. CPS ; and the Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the its withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would a stop order or suspension should be deemed to be incorporated by reference into the Registration Statement or Final Prospectusissued.
(c) The Company will deliver toDuring the period beginning on the Initial Sale Time and ending on the later of the Closing Date or such date, or upon as in the order ofopinion of the Underwriter, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is no longer required by law to be delivered by an Underwriter or dealer in connection with sales by the Underwriter or a dealer (the “Distribution Period”), the Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in effect, so far as necessary to permit the sale and distribution of any Certificatesthe Common Shares by the Underwriter as contemplated by the provisions hereof and the Prospectus. If, during the Distribution Period the Sale Preliminary Prospectus is being used to solicit offers to purchase Common Shares at a time when the Prospectus is not yet available and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Sale Preliminary Prospectus in writing in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Sale Preliminary Prospectus to comply with applicable law, the Company shall promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Sale Preliminary Prospectus so that the statements in the Sale Preliminary Prospectus as so amended or supplemented will not, in the light of the circumstances when the Sale Preliminary Prospectus is delivered to a prospective purchaser, be misleading or so that the Sale Preliminary Prospectus, as amended or supplemented, will comply with applicable law. If during the Distribution Period any event occurs, or fails to occur, as a result of which, in the judgment of the Company or in the reasonable opinion of the UnderwritersUnderwriter, it becomes (i) the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserthen existing, not misleading, or, if or (ii) it is becomes necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, then the Company will promptly notify each of the Underwriters Underwriter and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission Commission, and furnish at its own expense to the Underwriter, an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawthe Act.
(ed) The Company will shall cooperate with the Underwriters Underwriter and its counsel in endeavoring to qualify the Certificates Common Shares for offering and sale under (or obtain exemptions from the application of) the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may reasonably designate; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to service of general process, to qualification to do business as a foreign entity, to registration as a securities dealer or to taxation as a foreign corporation. In each jurisdiction in which the Common Shares have been so qualified, the Company will file such statements and reports as may be required to be filed by it by the laws of such jurisdictions as the Underwriters may designate and will maintain jurisdiction to continue such qualifications qualification in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatessecurities.
(fe) The Company shall not invest, or otherwise use During the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstDistribution Period, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished shall furnish to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
Underwriter copies of (hi) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act originally filed (including Rule 158 promulgated thereunderall exhibits filed therewith).
, each amendment thereto (jwithout exhibits) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition each of the Company Preliminary Prospectuses, the Prospectus and all amendments and supplements thereto, in each case as soon as available and, with respect to the documents in clause (ii), in such quantities as the Underwriter may from time to time reasonably request.
(kf) On or before For a period of two years commencing with the Closing Datedate hereof, the Company will furnish to the Underwriter copies of all documents, reports and CPS other information furnished by the Company to the holders of its Common Stock generally except, in each case, if available on the Commission’s Electronic Data Gathering, Analysis and ▇▇▇▇▇ Retrieval System.
(g) The Company shall cause the respective computer records make generally available to holders of the Common Stock as soon as practicable, but in any event not later than 18 months after the “effective date of the Registration Statement” (as defined in Rule 158(c)) of the Rules and Regulations), an earnings statement (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(h) [Intentionally Omitted.]
(i) The Company and CPS and Samco relating shall not take, directly or indirectly, prior to the Receivables termination of the offering contemplated by this Agreement, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares.
(j) For so long as the shares of Common Stock sold in the offering contemplated by this Agreement are listed on the Nasdaq National Market or a comparable securities exchange or market, the Company shall engage and maintain a registrar and transfer agent for the Common Stock.
(k) The Company shall file, on a timely basis, with the Commission all reports and documents required to be marked to show filed under the Trustee's absolute ownership of Exchange Act during the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementDistribution Period.
(l) To For a period of 60 days after the extentdate of the Prospectus (the “Lock-Up Period”) the Company shall not, if anywithout the prior written consent of the Underwriter, (1) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or enter into a transaction that would have the same effect; or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise; (2) publicly disclose the intention to make any such offer, sale, hypothecation, pledge, grant or disposition, or to enter into any such transaction, swap, hedge or other arrangement; or (3) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock; provided, however, that the ratings provided with respect foregoing restrictions do not apply to (i) the registration of the Common Shares and the sales thereof to the Certificates by either Underwriter pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Prospectus and the Incorporated Documents, and (iii) the grant of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans and described in the Incorporated Documents; provided, further, that, if (x) within 15 days of the Rating Agencies is conditional upon expiration of the furnishing Lock-Up Period, the Company issues an earnings release or discloses material news, or a material event relating to the Company occurs, or (y) before the expiration of documents the Lock-Up Period, the Company announces that it will release earnings results during the 15-day period beginning on the last day of the Lock-Up Period, then in any such case the restrictions imposed by this Section 4A(l) shall continue to apply until the expiration of the 15-day period beginning on the issuance of the earnings release, the disclosure of the material news or the taking occurrence of any other actions the material event; provided, moreover, that the foregoing clause shall not apply if the Company delivers to the Underwriter, not sooner than 18 nor later than 16 days before the last day of the Lock-Up Period, a certificate, signed by the Company chief financial officer or CPSchief executive officer of the Company, CPS shall, or shall cause certifying on behalf of the Company to, furnish such documents and take any such other actionsthat the shares of Common Stock are not an “actively traded securities,” as defined in Rule 101(c)(1) of Regulation M under the Exchange Act.
(m) On The Company will direct the Closing Datetransfer agent to place stop transfer restrictions upon any such securities of the Company that are bound by existing Lock-Up Agreements for the duration of the periods contemplated in such agreements.
(n) The Company shall not, without the prior written consent of the Underwriter, prepare or use a Free Writing Prospectus in connection with the offering and sale of the Common Shares or take any actions that would require the Company or the Underwriter to file a Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations. The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, or retention where required, and legending. The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company and CPS shall cause the Certificate Insurer to issue the Policy will give prompt notice thereof to the Trustee Underwriter and, if requested by the Underwriter, will prepare and furnish without charge to the Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for the benefit of the holders of the Certificates use therein as identified in form and substance satisfactory to each UnderwriterSection 11 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Sterling Construction Co Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing 430A; and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed not file with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus of which (A) the Underwriters shall not previously have been advised and furnished with a copy a reasonable period of time prior to the proposed filing and as to which filing the Underwriters shall not have given their consent, which consent shall not be unreasonably withheld, or (B) is not in compliance with the Act and the Rules.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Underwriters of (i) any request made by the Commission for amendment of the Registration Statement, for supplement to the Prospectus or for any other additional information; (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or the institution or threat of any action, investigation or proceeding for that purpose; and or (viiii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for such that purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting or withdrawal thereof as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectuspossible.
(c) The Company will (i) on or before the Closing Date, deliver toto the Underwriters a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, or promptly upon the order offiling thereof, a signed copy of each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriter); (ii) as promptly as possible deliver to the Underwriters, from time to timeat such office as the Underwriters may designate, as many copies of any Preliminary Final the Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters ; and (iii) thereafter from time to time during the period when delivery of in which a Final Prospectus prospectus is required under by law to be delivered by an Underwriter or dealer, likewise send to the 1933 Act, Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Final ProspectusProspectus and of any amended prospectus, or as thereafter amended or supplementedfiled by the Company with the Commission, as the Underwriters may reasonably request. The Company will deliver to request for the Underwriters at or before purposes contemplated by the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestAct.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with (the sale of any Certificates, "Prospectus Delivery Period") any event relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. If, orafter the initial public offering of the Shares by the Underwriters and during the Prospectus Delivery Period, the Underwriters shall propose to vary the terms of the offering of the Shares by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with opinion either of counsel for the 1933 Act Company or of counsel for the 1934 ActUnderwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will promptly notify each of forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and will promptly either (i) prepare and fileall dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, as from time to time amended or cause to be prepared and filedsupplemented, in connection with the Commission an appropriate sale of the Shares in accordance with the applicable provisions of the Act and the applicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate cooperate, when and as requested by you, in the qualification of the Shares (including the Reserved Shares to be offered in connection with the Underwriters in endeavoring to qualify the Certificates Reserved Share Program) for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the Prospectus Delivery Period, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or Blue Sky laws; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or file any general consent to service of process in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, will from time to time, prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until The Company agrees to pay all costs and expenses incident to the retirement performance of the Certificatesobligations of the Company under this Agreement, or until such time as including, without limitation, all costs and expenses incident to (i) the preparation, printing and filing with the Commission and the NASD of the Registration Statement, any Preliminary Prospectus and the Prospectus; (ii) the furnishing to the Underwriters shall cease of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this Section 6 to maintain a secondary market in be so furnished; (iii) the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements printing of compliance this Agreement and the annual independent certified public accountant's reports furnished related documents delivered to the Trustee pursuant Underwriters; (iv) the preparation, printing and filing of all supplements and amendments to the Pooling Prospectus referred to in paragraph (d) of this Section 6; (v) the furnishing to you of the reports and Servicing Agreementinformation referred to in paragraph (j) of this Section 6; and (vi) the printing and issuance of stock certificates, as soon as such statements and reports are furnished to including the Trusteetransfer agent's fees.
(h) The Company agrees to reimburse you, for the account of the several Underwriters, for Blue Sky fees and related disbursements (including reasonable counsel fees and disbursements and cost of printing memoranda for the Underwriters) paid by or CPS shall, from for the date hereof through account of the Underwriters or their counsel in qualifying the Shares under state securities or Blue Sky laws and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any review of the conditions contained in this Agreement; and all actions taken offering by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each UnderwriterNASD.
(i) The Company will cause the Trust to make generally available to Certificateholders as As soon as practicable, but no in any event not later than sixteen months 45 days after the end of the first fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the rules and regulations promulgated under the Act, an earnings statement of that will be in the Trust covering a period of at least twelve consecutive months beginning after such Effective Date detail required by, and satisfying will otherwise comply with, the provisions of Section 11(a) of the Act (including and Rule 158 158(a) of the rules and regulations promulgated thereunder).
(j) So long as any During a period of three (3) years after the Certificates are outstandingdate hereof, the Company will furnish to the Underwriters you, and to each Underwriter who may so request in writing, copies of all periodic and special reports furnished to stockholders of the Company and of all information, documents and reports filed with the Commission.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(l) The Company will not, directly or other communications (financial or otherwise) furnished or made available to Certificateholdersindirectly, and deliver to without the Underwriters during such periodprior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co., (i) as soon as they are available, copies of any reports and financial statements filed by or LLC on behalf of the Trust Underwriters, issue, offer, sell, grant any option to purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 180 days following the Company with commencement of the Commission public offering of the Shares by the Underwriters, except pursuant to this Agreement and except for issuances pursuant to the Securities exercise of stock options outstanding on or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof and except as contemplated by the Prospectus.
(m) The Company will cause the Shares to be duly included for quotation on the Nasdaq National Market prior to the Closing Date.
(n) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(o) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(p) The Company will file in a timely manner all such reports, forms or other documents as may be required from time to time, under the Act and the Rules, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act and the Rules, the Exchange Act and the rules and regulations promulgated thereunder.
(q) The Company is familiar with the Investment Company Act of 19341940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company was not and will not be an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(iir) such additional information concerning The Company either has caused to be delivered to you or will cause to be delivered to you prior to the business effective date of the Registration Statement a letter (the "Lock-Up Agreement") from each of the Company's directors, officers and financial condition holders of the outstanding capital stock of the Company as stating that such person agrees that he or she will not, without the Underwriter may from time to time reasonably requestprior written consent of ▇.
(k) On or before the Closing Date, the Company and CPS and ▇. ▇▇▇▇▇▇▇▇▇ shall cause + Co., LLC directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the respective computer records meaning of Rule 16a-1(h) under the Exchange Act or otherwise dispose of (or enter into any transaction that is designed to, or could be expected to, result in the disposition by any person of) any shares of Common Stock, options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock currently or hereafter owned either of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) by him or her, or publicly announce his or her intention to do any of the Company and CPS and Samco relating foregoing, prior to the Receivables to be marked to show the Trustee's absolute ownership date of the Receivables, Prospectus and from and for a period of 180 days after the Closing Date neither the Company nor CPS nor Samco shall take first date any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted Underwritten Stock is released by the Pooling and Servicing AgreementUnderwriters for sale to the public.
(ls) To The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the extent, if any, Reserved Shares are offered in connection with the Reserved Share Program. The Company hereby agrees that it will direct the ratings provided with respect Company's transfer agent to place a stop transfer restriction for a period of three (3) months from the Certificates date of this Agreement upon any Reserved Shares that are restricted by either of the Rating Agencies is conditional upon the furnishing of documents NASD or the taking NASD rules from sale, transfer, assignment, pledge or hypothecation for such three (3)-month period following the date of any other actions by this Agreement. ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC will notify the Company or CPS, CPS shallin writing as to which persons purchasing Reserved Shares will need to be so restricted. If the Company shall release, or shall cause the Company toseek to release, furnish from such documents and take restrictions any of such other actions.
(m) On the Closing DateReserved Shares, the Company and CPS shall cause the Certificate Insurer agrees to issue the Policy to the Trustee reimburse ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC for the benefit of the holders of the Certificates any reasonable expenses (including without limitation legal expenses) they incur in form and substance satisfactory to each Underwriterconnection with, or as a result of, such release.
Appears in 1 contract
Sources: Underwriting Agreement (Aristotle International Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A; and (ii) not file with the Commission any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b(a) Registration Statement unless CPS has furnished to each of which the Underwriters shall not previously have been advised and furnished with a copy for its review a reasonable period of time prior to the proposed filing and will not file any such proposed amendment or supplement as to which any of filing the Underwriters reasonably objects and shall not have given their consent or (b) of which is not in compliance with the 1933 Securities Act Regulations. CPS or the rules and regulations of the Commission thereunder.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Underwriters (i) when of any request made by the Commission for amendment of the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or the institution or threat of any action, investigation or proceeding for that purpose; and or (viiii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for such that purpose. CPS The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting or withdrawal thereof as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectuspossible.
(c) The Company will (i) on or before the Closing Date, deliver toto each of the Representatives a signed copy, or and to each of the other Underwriters a conformed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the order offiling thereof, a signed copy for each of the Representatives and conformed copy for each of the other Underwriters of each post-effective amendment, if any to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriters); (ii) as promptly as possible deliver to the Underwriters, from time to timeat such office as the Underwriters may designate, as many copies of any Preliminary Final the Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters ; and (iii) thereafter from time to time during the period when delivery of in which a Final Prospectus prospectus is required under by law to be delivered by an Underwriter or a dealer, likewise send to the 1933 Act, Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Final ProspectusProspectus and of any amended prospectus, or as thereafter amended or supplementedfiled by the Company with the Commission, as the Underwriters may reasonably request. The Company will deliver to request for the Underwriters at or before purposes contemplated by the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestSecurities Act.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur or condition exist as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. The Company authorizes the Underwriters and all dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, or, if it is necessary at any as from time to amend time amended or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference supplemented, in the Registration Statement to comply connection with the 1933 sale of the Shares in accordance with the applicable provisions of the Securities Act or and the 1934 Actapplicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will promptly notify each submit to you, for your information, a copy of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate with cooperate, when and as requested by you, in the Underwriters in endeavoring to qualify qualification of the Certificates Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or blue sky laws; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or file any general consent to service of process in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, will from time to time, prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until The Company agrees to pay the retirement costs and expenses relating to the following matters: (A) the preparation, printing or reproduction and filing with the Commission of the CertificatesRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or until supplement to any of them; (B) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such time copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (C) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to be sold by the Company; (D) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (E) the registration of the Shares under the Exchange Act and the listing of the Shares on the New York Stock Exchange; (F) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions (including filing fees and the reasonable fees and expenses of counsel for the Underwriters shall cease relating to maintain a secondary market such registration and qualification); (G) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (H) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Certificates, whichever occurs first, Shares; (I) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (J) all other costs and expenses incident to the performance by the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteeits obligations hereunder.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as As soon as practicable, but no in any event not later than sixteen months 45 days after the end of the first fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the rules and regulations promulgated under the Securities Act, an earnings statement of that will be in the Trust covering a period of at least twelve consecutive months beginning after such Effective Date detail required by, and satisfying will otherwise comply with, the provisions of Section 11(a) of the Securities Act (including and Rule 158 158(a) of the rules and regulations promulgated thereunder).
(ji) So long as any During a period of three years after the Certificates are outstandingdate hereof, the Company will furnish or make available to the Underwriters Underwriter copies of all periodic and special reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, shareholders of the Company including but not limited to (i) as soon as they are availablereasonably practicable after the end of each fiscal year, copies of any the Company's Annual Report and (ii) as soon as reasonably practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other information, documents or reports filed with the Commission.
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will not, directly or indirectly, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC and financial statements filed by or ▇.▇. ▇▇▇▇▇▇ Securities Inc., on behalf of the Trust Underwriters, issue, offer, sell, grant any option to purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 180 days from the Company with effective date of the Commission Registration Statement, except (i) pursuant to this Agreement, (ii) pursuant to the exercise of warrants outstanding on the date hereof and as described in the Prospectus or (iii) pursuant to the exercise of stock options outstanding on the date hereof, or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof and as described in the Prospectus.
(l) The Company will cause the Shares to be duly listed, and admitted and authorized for trading, on the New York Stock Exchange prior to the Closing Date.
(m) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(n) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(o) The Company will use its best efforts to timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and material substance with the applicable requirements under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company is familiar with the Investment Company Act of 19341940, as amended, and (ii) has in the past conducted its affairs, and will in the future conduct its affairs, in such additional information concerning a manner to ensure that the business Company was not and financial condition will not be an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the Underwriter may from time to time reasonably requestrules and regulations thereunder.
(kq) On The Company either has caused to be delivered to you or before will cause to be delivered to you prior to the Closing Dateeffective date of the Registration Statement a letter (the "Lock-Up Agreement") from each of the Company's directors, executive officers and five percent (5%) or greater stockholders and Sapphire Advisors LLC and each of its members stating that such person or entity agrees that he, she or it will not, without the Company and CPS and prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ shall cause + Co., LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc. directly or indirectly, (i) sell, offer, 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, transfer the respective computer records economic risk of ownership in, make any short sale, pledge or otherwise dispose of any shares of capital stock of the Company and CPS and Samco relating or any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire any shares of capital stock of the Receivables Company, or (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 any shares of capital stock of the Company, whether any such transaction described in clause (i) or (ii) above is to be marked to show the Trustee's absolute ownership settled by delivery of shares of capital stock of the ReceivablesCompany or such other securities, and from and in cash or otherwise, in each case, that such person or entity directly or beneficially owns or acquires, for a period of 180 days after the Closing Date neither from the Company nor CPS nor Samco shall take any action inconsistent with effective date of the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementRegistration Statement.
(lr) To Until March 17, 2006, the extentCompany will retain Ernst & Young LLP or a comparable qualified independent account, if any, that as its qualified accountants and such qualified tax experts as the ratings provided Company may identify to assist the Company in developing appropriate accounting systems and testing procedures and to conduct quarterly compliance reviews designed to determine compliance with respect to the Certificates by either REIT provisions of the Rating Agencies is conditional upon Code and the furnishing of documents or Company's exempt status under the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions1940 Act.
(ms) On The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Closing DateCompany is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company and CPS shall cause the Certificate Insurer to issue the Policy will not engage in any activities which might be subject to the Trustee for Commodity Exchange Act, as amended, unless such activities are exempt from the benefit Commodity Exchange Act or otherwise comply with that Commodity Exchange Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(t) Provided that the closing of the holders offering contemplated by this Agreement has occurred, the Company will make an election to qualify as a REIT under Section 856 through 860 of the Certificates in form Code with its 2004 U.S. Federal income tax return (and substance satisfactory will as necessary during 2004 make a joint election with one or more corporate subsidiaries, including SFR, to each Underwritertreat such subsidiaries as taxable REIT subsidiaries).
Appears in 1 contract
Sources: Underwriting Agreement (Sunset Financial Resources Inc)
Covenants of the Company. SECTION 1. The Company covenants and agrees agrees, so long as any of the bonds of Series MM are outstanding or until provision shall have been made for the redemption or payment thereof by the deposit with the several Underwriters thatTrustee of money necessary to effect such redemption or payment, as follows:
(a) CPS will use its best efforts to cause the Registration StatementThe Company, if not effective during or at the Execution Timeclose of the calendar year 2003, and any amendment theretoduring or at the close of each calendar year thereafter, shall charge against the income for such calendar year and place to become effective as soon as reasonably practicable thereafter orthe credit of a "depreciation reserve account" to be kept on its books, if the procedure in Rule 430A is followedgreater of the following two amounts: (i) the amount of $1,550,000, prepare and timely file with or (ii) an amount equal to 2 1/2% of the Commission under Rule 424(bsum of
(i) a Final Prospectus containing information previously omitted the aggregate principal amount of all bonds which, at the time such credit is placed to said "depreciation reserve account", shall be outstanding and shall have been outstanding under the Mortgage as supplemented for a period of effectiveness not less than six (6) months, or which at such time shall have been outstanding under the Mortgage as supplemented for less than six (6) months, if such bonds shall have been issued, or the proceeds thereof shall have been used, directly or indirectly, for or on account of the Registration Statement in reliance upon Rule 430A. Prior to the termination pledge, acquisition, exchange, cancellation, payment, refundment, redemption or discharge at, before or after maturity of the offering bonds of any series theretofore issued under the Mortgage or of any "underlying bonds" or "specified obligations" as defined in Section 4 of Article III of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effectiveMortgage; and
(ii) when the Final Prospectusaggregate principal of all indebtedness of the Company secured by a mortgage lien upon the properties or assets of the Company, which is a lien superior to the lien of the Mortgage, except (A) any such mortgage indebtedness the evidences of which shall then be pledged with the Trustee under the provisions of the Mortgage or pledged with the Trustee under any mortgage constituting a lien superior to the lien of the Mortgage on any part of the properties or assets of the Company, and (B) any supplement thereto, such mortgage indebtedness for the payment or redemption of which the necessary moneys shall have been filed deposited with the Commission pursuant Trustee under the Mortgage securing the same; provided, however, that (1) the amount required by this subparagraph (a) to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment be placed to the Registration Statement shall have been filed or become effective; (iv) credit of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus such "depreciation reserve account" in or for any other additional information; (v) calendar year shall be deemed to include and not to be in addition to amounts which, by the provisions of the issuance by Mortgage, the Commission Company is required to add to any depreciation reserve account for such year, (2) nothing in this subparagraph (a) shall prevent the Company from crediting to such "depreciation reserve account", during or at the close of any stop order suspending calendar year, an amount greater than the effectiveness of the Registration Statement or the institution of any proceeding amount required by this subparagraph (a) for that purpose; such year, and (vi3) the Company may, from time to time, during each such calendar year, charge against such "depreciation reserve account" the cost of depreciable property retired by it during such year, including the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification andcost, if issued or suspendedany, to obtain as soon as possible the withdrawal thereofof dismantling such retired property, less any salvage credits applicable thereto.
(b) Prior The Company, after it shall have issued any of the bonds of Series MM-1 and bonds of Series MM-2, shall not request the Trustee
(i) to authenticate bonds of any series under the Mortgage
(A) pursuant to Section 2 of Article III of the Mortgage for or on account of the acquisition and cancellation, or of the payment, cancellation, redemption or other discharge at, before or after maturity, affected prior to January 1, 1951, of any bonds of any series theretofore issued under the Mortgage, or
(B) pursuant to Section 4 of Article III of the Mortgage, for or on account of the pledge, acquisition, exchange, cancellation, payment, refundment, redemption or discharge effected prior to January 1, 1951, of "underlying bonds" or "specified obligations" mentioned in said Section 4, or
(C) pursuant to Section 5 of Article III of the Mortgage, for or in respect of expenditures made prior to January 1, 1951, for or on account of "permanent property", or
(ii) to pay to the filing thereof with Company any cash pursuant to Section 6 of said Article III for or on account of any transactions mentioned in clause (A) or clause (B) of subdivision (i) of this subparagraph (b) or for or in respect of any expenditures mentioned in clause (C) of subdivision (i) of this subparagraph (b). Neither shall the Commission, CPS will submit Company request the Trustee to each authenticate bonds of any series under the provisions of Section 4 of Article III of the UnderwritersMortgage or to pay the Company any moneys under Section 6 of said Article III or under Article IX of the Mortgage for or on account of the payment, for its approval discharge and cancellation effected on or after reasonable notice thereofJanuary 1, such approval not to be unreasonably withheld 1944, at, before or delayed, a copy after maturity of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering Refunding Mortgage Five Per Cent Gold Bonds of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusCompany, dated September 1, 1897, due September 1, 1947.
(c) The Company will deliver to, or upon shall not request the order of, the Underwriters, from time Trustee to time, as many copies authenticate bonds of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required series under the 1933 Act, as many copies of the Final Prospectus, Mortgage or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to pay to the Underwriters at Company any cash deposited with or before received by the Closing DateTrustee under the Mortgage (except cash deposited with or received by the Trustee as and for a sinking fund for any series of bonds which have been or may hereafter be issued under the Mortgage), two signed copies unless the Company as a part of the Registration Statement and all amendments thereto including all exhibits filed therewithsuch request, and will deliver in addition to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including all other documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law the Mortgage to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in request, shall deliver to the Registration Statement Trustee a certificate or certificates, signed by the President or the Executive Vice President or the Chief Financial Officer or a Vice President and by the Final Prospectus and in order to evidence the accuracy Treasurer or completeness of any an Assistant Treasurer of the conditions contained Company (i) showing, in this Agreement; and all actions taken case such request is for the authentication of bonds pursuant to Section 5 of Article III of the Mortgage or for the payment of cash pursuant to Section 6 of said Article III for or in respect of expenditures made by the Company on or CPS after January 1, 1951, for or on account of "permanent property":
(A) the total amount of expenditures (reduced to authorize the sale extent required, if any, by the provisions of clause (G) of this subdivision (i)) made on or after January 1, 1951, for or on account of "permanent property";
(B) the original cost of all properties, subject to the lien of the Certificates Mortgage at any time on or after January 1, 1951, replaced or retired on or after January 1, 1951, less, if any such property shall be reasonably satisfactory in form have been released from the lien of the Mortgage pursuant to any applicable provision of the Mortgage and substance to each Underwriter.obtain such release cash shall have been deposited with the Trustee, the amount of such cash;
(iC) The Company will cause an amount equal to the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement sum of (1) 133-1/3% of the Trust covering a period aggregate principal amount of at least twelve consecutive months beginning bonds which have been authenticated after January 1, 1951, pursuant to Section 5 of Article III of the Mortgage for or on account of such Effective Date and satisfying expenditures made on or after January 1, 1951, plus (2) 133-1/3% of the aggregate amount of deposited cash withdrawn after January 1, 1951, pursuant to the provisions of Section 11(a6 of Article III of the Mortgage for or in respect of such expenditures made on or after January 1, 1951, plus (3) 133-1/3% of the aggregate amount of excess of the nature described in subdivision (2) of Section 4 of Article III of the Act Mortgage eliminated or compensated, as in said subdivision (including Rule 158 promulgated thereunder).2) provided, for or in respect of expenditures of the Company for or on account of "permanent property" during said period commencing January 1, 1951;
(jD) So long as any an amount equal to 100% of the Certificates are outstanding, aggregate amount of moneys withdrawn by the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act provisions of 1934, as amended, and (ii) such additional information concerning the business and financial condition Article IX of the Company as the Underwriter may from time to time reasonably request.Mortgage on or after January 1, 1951, for or in respect of expenditures made for or on account of "permanent property";
(kE) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating an amount equal to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extentexcess, if any, of the amount shown pursuant to clause (A) above over the sum of the amounts shown pursuant to clauses (B), (C) and (D) above;
(F) that, for a period of twelve (12) consecutive calendar months (to be selected by the Company) ending within ninety (90) days next preceding such request, the "net earnings of the Company" shall have been at least twice the amount of the annual interest requirement of all "mortgage and prior lien debt of the Company";
(G) that the ratings provided with amount of the expenditure, if any, included in the expenditures set forth in clause (A) above in respect of any particular "permanent property", which at the time of its acquisition was subject to the Certificates by either lien of any mortgage existing or placed thereon at the time of its acquisition, does not exceed an amount equal to the excess, if any, of the Rating Agencies is conditional upon value (determined as provided in the furnishing first paragraph of documents Section 8 of Article III of the Mortgage) of such particular "permanent property" at the time of acquisition of such property over 133-1/3% of the principal amount of all indebtedness secured by all such mortgages existing or placed on such particular property at the taking time of the acquisition thereof, and that the amount of the expenditure, if any, included in the expenditures set forth in clause (A) above in respect of any other actions by particular "permanent property", which at the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take time of its acquisition was not subject to any such other actions.
(m) On the Closing Datelien, the Company and CPS shall cause the Certificate Insurer to issue the Policy does not exceed an amount equal to the Trustee for value (determined as provided in the benefit first paragraph of Section 8 of Article III of the holders Mortgage) of such particular "permanent property" at the Certificates in form and substance satisfactory to each Underwriter.time of acquisition of such property;
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thateach Underwriter as follows:
(ai) CPS Immediately following the execution of this Agreement, the Company will use its best efforts prepare a Prospectus setting forth the number of Shares covered thereby and their terms not otherwise specified in the preliminary prospectus, the names of the Underwriters, the price at which the Shares are to cause be purchased by the Registration Statement, if not effective at Underwriters from the Execution TimeCompany, and any amendment thereto, to become effective such other information as soon as reasonably practicable thereafter or, if the procedure Underwriters and the Company deem appropriate in Rule 430A is followed, prepare and timely file connection with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the CertificatesShares; and the Company will effect the filings required under Rule 424(b), CPS in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will not file any amendment furnish to the Underwriters as many copies (including by electronic means, if so requested in lieu of paper copies) of the Registration Statement Prospectus as they shall reasonably request, including, if requested by the Underwriters, in addition to or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each in lieu thereof, electronic copies of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; Prospectus.
(ii) when The Company will comply with the Final Prospectusrequirements of Rule 430B and will notify the Underwriters immediately, and any supplement theretoconfirm the notice in writing, shall have been filed with the Commission pursuant to Rule 424(b); (iiia) when, prior to termination of the offering effectiveness of the Certificates, any amendment to the Registration Statement, (b) of the transmittal to the Commission for filing of any supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Act, (c) of the receipt of any comments from the Commission with respect to the Registration Statement shall have been filed or become effective; Prospectus or documents incorporated or deemed to be incorporated by reference therein, (ivd) of any request by the Commission for any amendment of to the Registration Statement or any amendment or supplement to the Final Prospectus with respect to the Shares or for any other additional information; information relating thereto, and (ve) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution initiation of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(biii) Prior to During the filing thereof with period beginning on the CommissionApplicable Time and ending on the later of the Closing Time or such date, CPS will submit to each as in the reasonable opinion of counsel for the Underwriters, for its approval after reasonable notice thereof, such approval not the Prospectus is no longer required under the 1933 Act or the 1934 Act to be unreasonably withheld delivered in connection with sales by the Underwriters or delayeda dealer, a copy including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement (including any filing under Rule 462(b)), any preliminary prospectus or the Prospectus (including any amendment or supplement through incorporation by reference of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be report filed under the 1934 Act before Act), the termination of the offering of the Certificates by Company will furnish to the Underwriters if for review a copy of each such proposed amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document would be deemed to be incorporated by reference into which the Registration Statement Underwriters or Final Prospectuscounsel for the Underwriters shall reasonably object.
(civ) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies a conformed copy of the Registration Statement as originally filed and all amendments of each amendment thereto filed prior to the termination of the initial offering of the Shares (including all exhibits filed therewith, therewith or incorporated by reference therein and the documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3).
(v) The Company will deliver furnish to the Underwriters Underwriters, 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 the offering, such number of copies (including by electronic means, if so requested by the Underwriters, in addition to or in lieu of, paper copies) of the Registration Statement Prospectus (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as amended or supplemented) as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause request for the Trust to, comply with purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the or 1934 Act Regulations, so as to permit .
(vi) If at any time after the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, date hereof any event shall occur as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary which shall be communicated in writing by the Underwriters to the Company, to amend or supplement the Final Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered, the Company will promptly either (a) forthwith prepare and furnish to the Underwriters an amendment of or supplement to the Prospectus or (b) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934 Act, in each case, in form and substance reasonably satisfactory to counsel for the Underwriters, which will amend or supplement the Prospectus so that it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus it is delivered to a purchaserdelivered, not misleading, or, if it is necessary . If at any time after the date hereof, an event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to amend or supplement state a material fact necessary in order to make the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will notstatements therein, in the light of the circumstances when existing at the time it is so deliveredused, be not misleading, the Company will promptly notify the Underwriters and will promptly amend or so supplement in a manner reasonably satisfactory to the Underwriters, at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Shares) or the Statutory Prospectus or any preliminary 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 Final Company will promptly notify the Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 5 hereof.
(vii) The Company represents and agrees that, unless it obtains the prior written consent of the Underwriters, and each Underwriter agrees that, unless it obtains the prior written consent of the Company and the other Underwriters, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus”, as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that prior to the preparation of the Prospectus in accordance with Section 3(a), the Underwriters are authorized to use the information with respect to the final terms of the Shares in communications orally conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Company and the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 lawto any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(eviii) The Company will cooperate endeavor in good faith, in cooperation with the Underwriters in endeavoring Underwriters, to qualify the Certificates Shares for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Underwriters may designate; provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or trust or to file any general consent to service of process. In each jurisdiction in which the Shares have been so qualified the Company will file such statements and reports as may be required by the laws of such jurisdictions as the Underwriters may designate and will maintain jurisdiction to continue such qualifications qualification in effect for so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesShares.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(iix) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as reasonably practicable, but no not later than sixteen months 90 days after the Effective Dateclose of the period covered thereby, an earnings earning statement of the Trust Company (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying not later than the provisions of Section 11(a) first day of the Act (including Company’s fiscal quarter next following the effective date of the Registration Statement. “Earning statement”, “make generally available” and “effective date” will have the meanings contained in Rule 158 promulgated thereunder)of the 1933 Act Regulations.
(jx) So long as any The Company will use the net proceeds received by it from the sale of the Certificates are outstandingShares in the manner specified in the Prospectus under the caption “Use of Proceeds” in all material respects.
(xi) The Company currently intends to continue to qualify as a “real estate investment trust” under the Code, and use its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(xii) The Company will furnish timely file any document which it is required to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission file pursuant to the Securities Exchange 1934 Act of 1934, as amended, and (ii) such additional information concerning prior to the business and financial condition termination of the Company as offering of the Underwriter may from time to time reasonably requestShares.
(kxiii) On or before The Company will use its best efforts to effect the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records listing of the Company Shares on the NYSE.
(xiv) The Company, its managing trustees and CPS and Samco relating executive officers, will not, during a period of 60 days from the date of this Agreement, without the Representatives’ prior written consent, register, offer, sell, contract to the Receivables sell, grant any option to be marked purchase or otherwise dispose of any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or warrants to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivablespurchase Common Shares, other than as expressly permitted by (a) the Pooling and Servicing Shares which are to be sold pursuant to this Agreement.
; (lb) To the extent, if any, that the ratings provided with respect Common Shares issued or to be issued pursuant to the Certificates by either Company’s Incentive Share Award Plan; (c) Common Shares to be issued to the Manager in payment of the Rating Agencies is conditional upon the furnishing of documents its incentive fee; and (d) Common Shares to be issued as partial or the taking of any other actions full payment for properties directly or indirectly acquired or to be acquired by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Dateits subsidiaries; provided that, the Company and CPS shall cause have conditioned the Certificate Insurer to issue issuance of such Common Shares upon the Policy agreement of the recipients to the Trustee for the benefit restrictions of the holders of the Certificates in form and substance satisfactory to each Underwriterthis paragraph (xiv).
Appears in 1 contract
Sources: Underwriting Agreement (Hospitality Properties Trust)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:as follows: ------------------------
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during w▇▇▇ ▇▇▇ies of each amendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters in endeavoring endeavor, i▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇erwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying Company (in form complying with the provisions of Section 11(aRule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later ▇▇▇▇ ▇▇▇ first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Act (including Rule 158 promulgated thereunder)Registration Statement.
(je) So long As soon as any practicable after the date of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersthis Agreement, and deliver in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant and to advise the Securities Exchange Act Representative of 1934, as amended, such filing and (ii) to confirm such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestadvice in writing.
(kf) On or before From the date of this Agreement until the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause will not, without the respective computer records of Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the Company and CPS and Samco relating sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
Senior Notes (l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee except for the benefit Senior Notes issued pursuant to this Agreement). The Representative agrees that commercial paper or other debt securities with scheduled maturities of the holders of the Certificates in form and substance satisfactory less than one year are not subject to each Underwriterthis Section 3(f).
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representatives orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representatives sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon furnish the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many Underwrite▇▇ ▇▇▇▇ copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representatives and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with endeavor, in ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ the Underwriters in endeavoring Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than ▇▇▇ first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Representatives of such filing and to confirm such advice in writing.
(f) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingthis Agreement, the Company will furnish not, without the Representatives' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Underwriters copies of all reports Senior Notes (except for the Senior Notes issued pursuant to this Agreement). The Representatives agree that commercial paper or other communications (financial or otherwise) furnished or made available debt securities with scheduled maturities of less than one year are not subject to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestthis Section 3(f).
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you and the several Underwriters participating in the Offering of any Series of Certificates that:
(a) CPS In connection with the execution of each Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement to cause be filed under the Registration StatementAct setting forth the principal amount of Certificates covered thereby and their terms not otherwise specified in the Prospectus, the price at which the Certificates are to be purchased by the Underwriters from the Company, either the initial public offering price or the method by which the price at which the Certificates are to be sold will be determined, the selling concession and reallowance, if not effective at the Execution Timeany, any delayed delivery arrangements, and any amendment thereto, to become effective such other information as soon as reasonably practicable thereafter or, if you and the procedure Company deem appropriate in Rule 430A is followed, prepare and timely file connection with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS but the Company will not file any amendment of amendments to the Registration Statement or amendment any amendments or supplement (including the Final Prospectus or any Preliminary Final Prospectus) supplements to the Base Prospectus Prospectus, unless it shall first have delivered copies of such amendments or any Rule 462(b) Registration Statement unless CPS has furnished supplements to each of the Underwriters a copy for its review prior to filing you, and you shall not have objected thereto promptly after receipt thereof. The Company will not file any such proposed amendment advise you or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will your counsel promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with notice is received from the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, that any post-effective amendment to the Registration Statement shall have been filed has become or will become effective; , and (ivii) of any request order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Certificates, or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission for or any amendment of authority administering any state securities or Blue Sky law, as soon as the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; Company is advised thereof, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, communication and to obtain as soon as possible the withdrawal thereofits lifting, if issued.
(b) Prior The Company will cause any Computational Materials and any Structural Term Sheets (each as defined in Section 8 below) with respect to each Series of Certificates that are delivered by the Underwriters to the filing thereof with the Commission, CPS will submit Company pursuant to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed Section 8 to be filed or with the Commission on a copy Current Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on the business day immediately following the day on which such Computational Materials and Structural Term Sheets are delivered to counsel for the Company by any document proposed of the Underwriters prior to 10:30 a.m. (and will use its best efforts to cause such Computational Materials and Structural Term Sheets to be so filed prior to 2:00 p.m., New York time, on such business day), and will promptly advise you when such Current Report has been so filed. The Company will cause one Collateral Term Sheet (as defined in Section 9 below) with respect to an Offering of a Series that is delivered by any of the Underwriters to the Company in accordance with the provisions of Section 9 to be filed with the Commission on a Current Report pursuant to Rule 13a-11 under the 1934 Exchange Act before on the termination business day immediately following the day on which such Collateral Term Sheet is delivered to counsel for the Company by any of the offering Underwriters prior to 10:30 a.m. In addition, if at any time prior to the availability of the Certificates by related Prospectus Supplement, any of the Underwriters has delivered to any prospective investor a subsequent Collateral Term Sheet that reflects, in the reasonable judgment of such Underwriter and the Company, a material change in the characteristics of the ▇▇▇▇ for the related Series from those on which a Collateral Term Sheet with respect to the related Series previously filed with the Commission was based, the Company will cause any such Collateral Term Sheet that is delivered by such Underwriter to the Company in accordance with the provisions of Section 9 to be filed with the Commission on a Current Report on the business day immediately following the day on which such Collateral Term Sheet is delivered to counsel for the Company by such Underwriter prior to 2:00 p.m. In each case, the Company will promptly advise you when such Current Report has been so filed. Notwithstanding the four preceding sentences, the Company shall have no obligation to file any materials provided by any of the Underwriters pursuant to Sections 8 and 9 which (i) in the reasonable determination of the Company are not required to be filed pursuant to the ▇▇▇▇▇▇ Letters or the PSA Letter (each as defined in Section 8 below), or (ii) contain erroneous information or contain any untrue statement of a material fact or, when read in conjunction with the Prospectus and Prospectus Supplement, omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood, however, that the Company shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any Computational Materials or ABS Term Sheets (as defined in Section 9 below) provided by such Underwriter to the Company pursuant to Section 8 or Section 9 hereof. The Company shall give notice to you and such Underwriter of its determination not to file any materials pursuant to clause (i) of the preceding sentence and agrees to file such materials if such document would be deemed Underwriter or you reasonably object to be incorporated by reference into the Registration Statement or Final Prospectussuch determination within one business day after receipt of such notice.
(c) The Company will deliver to, or upon If at any time when a prospectus relating to the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus Certificates is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any Certificates, Act any event shall occur occurs as a result of which, in which the judgment Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the reasonable opinion of the Underwriters, it becomes omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law the Act, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; provided, however, that the Company will not be required to file under the 1934 Act any document which would be deemed such amendment or supplement with respect to be any Computational Materials, Structural Term Sheets or Collateral Term Sheets incorporated by reference in the Registration Statement Prospectus other than any amendments or supplements of such Computational Materials or Structural Term Sheets that are furnished to comply with the 1933 Act Company by the Underwriter pursuant to Section 8(e) hereof or any amendments or supplements of such Collateral Term Sheets that are furnished to the 1934 ActCompany by the Underwriter pursuant to Section 9(d) hereof which are required to be filed in accordance therewith.
(d) With respect to each Series of Certificates, the Company will promptly notify each make generally available to the holders of the Underwriters Certificates and will promptly either (ideliver to you, in each case as soon as practicable, an earnings statement covering the twelve-month period beginning after the date of the Terms Agreement in respect of such series of Certificates, which will satisfy the provisions of Section 11(a) prepare and file, or cause to be prepared and filed, of the Act with the Commission an appropriate amendment respect to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawCertificates.
(e) The Company will cooperate with furnish to you copies of the Underwriters Registration Statement (two of which will be signed and will include all documents and exhibits thereto or incorporated by reference therein), each related preliminary prospectus, the Prospectus, and all amendments and supplements to such documents, in endeavoring to qualify each case as soon as available and in such quantities as you request.
(f) The Company will arrange for the qualification of the Certificates for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Underwriters may you reasonably designate and will maintain continue such qualifications in effect so long as reasonably required for the distribution of the Certificatesdistribution; provided, except however, that the Company will shall not be obligated required to qualify to do business in any jurisdiction where it is not qualified on the Certificates date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actprocess.
(g) Until The Company will pay all expenses incidental to the retirement performance of its obligations under this Agreement and any Terms Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel and accountants) incurred by them in connection with qualification of the Certificates and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing of memoranda relating thereto, for any fees charged by the nationally recognized statistical rating agencies for the rating of the Certificates, or until such time as for the Underwriters shall cease filing fee of the National Association of Securities Dealers, Inc. relating to maintain a secondary market in the Certificates, whichever occurs firstif applicable, and for expenses incurred in distributing preliminary prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be delivered in connection with the sale of the Certificates pursuant to this Agreement, the Company will file or cause to be filed, on a timely and complete basis, all documents that are required to be filed by the Company with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) So long as the Certificates of a Series shall be outstanding, the Company will deliver to each Underwriter you the annual statements statement of compliance delivered to the Trustee pursuant to the Pooling and Servicing Agreement and the annual statement of a firm of independent certified public accountant's reports accountants furnished to the Trustee pursuant to the Pooling and Servicing Agreement, Agreement as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Samco Mortgage Securities Corp)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:as follows: ------------------------
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company ▇▇▇▇▇▇▇ will deliver to, or upon the order of, furnish the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters in endeavoring endeavor, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇nderwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later ▇▇▇▇ ▇he first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of this Agreement, the Act Company will not, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (including Rule 158 promulgated thereunderexcept for the Senior Notes issued pursuant to this Agreement).
(jf) So long As soon as any practicable after the date of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersthis Agreement, and deliver in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant and to advise the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership Representative of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementto confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS The Company will (A) use its reasonable best efforts to cause the Registration StatementStatement to become effective, if not effective at the Execution Timetime and date that this Agreement is executed and delivered by the parties hereto, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination 430A of the offering of the CertificatesRules and Regulations, CPS will (B) not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (iiC) prepare file on a timely basis all reports and file, any definitive proxy or cause information statements required to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant subsequent to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition date of the Company as Prospectus and prior to the Underwriter may from time to time reasonably requesttermination of the offering of the Shares by the Underwriters.
(kb) On The Company will advise the Representatives promptly (A) when the Registration Statement or before any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Closing DateCommission, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records (C) of any request of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership Commission for amendment of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect Registration Statement or for supplement to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.the
Appears in 1 contract
Covenants of the Company. The In further consideration of the agreements of the Underwriters herein contained, the Company covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) CPS The Company, subject to Section 6(b), will use its best efforts to cause comply with the Registration Statement, if not effective at requirements of Rule 430B of the Execution TimeSecurities Act, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise notify the Underwriters Representatives, and confirm the notice in writing, of (i) when the Registration Statement, if not effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; the filing of any supplement or amendment to the Prospectus, (ivii) the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment of to the Registration Statement or any amendment or supplement to the Final Prospectus or for any other additional information; , and (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) order preventing or suspending the use of the receipt by CPS Preliminary Prospectus or the Prospectus, or of any notification with respect to the suspension of the qualification of the Certificates Notes for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposepurposes. CPS The Company will promptly effect the filings necessary pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether the form of the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such document. The Company will use its best reasonable efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior to During such period beginning on the filing thereof with date of this Agreement and ending on the Commissionlater of the Closing Date or such date as, CPS will submit to each in the opinion of counsel for the Underwriters, for its approval after reasonable notice thereof, such approval not the Prospectus is no longer required by law to be unreasonably withheld delivered in connection with sales of the Notes by an Underwriter or delayeddealer, a copy including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery Period”), the Company will give the Representatives notice of its intention to file or prepare any post-- effective amendment to the Registration Statement, Statement (including any filing under Rule 462(b) Registration Statement proposed of the Securities Act), or any amendment, supplement or revision to be filed the Disclosure Package or a copy the Prospectus, whether pursuant to the Securities Act, the Exchange 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 proposed to be filed under which the 1934 Act before the termination of the offering of the Certificates by Representatives or counsel for the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusshall reasonably object.
(c) The Company has furnished or will deliver todeliver, or upon request, to the order of, Representatives and counsel for the Underwriters, from time to timewithout charge, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement as originally filed and all amendments of each amendment thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including or incorporated by reference therein and documents filed under the 1934 Act and incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of all amendments thereto, the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration Statement and each amendment thereto furnished to the Underwriters may from time will be identical to time reasonably request.any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The Company willwill deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will cause furnish to each Underwriter, without charge, during the Trust toProspectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Securities Act and the 1934 Exchange Act Regulations, so as to permit the completion of the distribution of the Certificates Notes as contemplated in this Agreement and in the Final Registration Statement, the Disclosure Package and the Prospectus. If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesProspectus Delivery Period, any event shall occur or condition shall exist as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriters or for the Company, it becomes 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 to amend or supplement the Final Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at as of the Initial Sale Time and as of the time the Final Prospectus it is delivered or conveyed to a purchaser, not misleading, or, or if it is necessary shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Final Disclosure Package or the Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement order to comply with the 1933 Act or the 1934 Actrequirements of any law, the Company will (1) notify the Representatives of any such event, development or condition and (2) promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate Commission, subject to Section 6(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will furnish to the Registration Statement Underwriters, without charge, such number of copies of such amendment or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate reasonably request.
(f) The Company shall cooperate with the Representatives and will maintain counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such qualifications laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Certificates, except that the Notes. The Company will shall not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company required to qualify to do transact business as a foreign corporation, file a or to take any action that would subject it to general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which where it is not presently qualified or where it would be subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsto taxation as a foreign business. The Company willwill advise the Representatives promptly after the Company becomes aware of the suspension of the qualification or registration of (or any such exemption relating to) the Notes for offering, from time to time, prepare and file sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such statements, reportspurpose, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution event of the Certificates.
(f) The issuance of any order suspending such qualification, registration or exemption, the Company shall not invest, or otherwise use its reasonable best efforts to obtain the proceeds received by withdrawal thereof at the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actearliest possible moment.
(g) Until The Company shall apply the retirement net proceeds from the sale of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market Notes sold by it in the Certificates, whichever occurs first, manner described under the Company will deliver to each Underwriter caption “Use of Proceeds” in the annual statements of compliance Preliminary Prospectus and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the TrusteeProspectus.
(h) The Company or CPS shall, from will cooperate with the date hereof through Underwriters and including use its reasonable efforts to permit the Closing Date, furnish, or cause Notes to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents eligible for clearance and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which settlement through the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any facilities of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each UnderwriterDepositary.
(i) The During the Prospectus Delivery Period, the Company will cause shall file, on a timely basis, with the Trust Commission all reports and documents required to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after be filed under the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Exchange Act.
(j) So long as any of During the Certificates are outstanding, period commencing on the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, date hereof and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or ending on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause will not, without the respective computer records prior written consent of the Representatives sell, offer, contract or otherwise dispose of or transfer any debt securities of the Company and CPS and Samco relating similar to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, Notes (other than as expressly permitted contemplated by this Agreement with respect to the Notes).
(k) The Company will prepare a final term sheet containing only a description of the Notes and any other information agreed to by the Pooling Representatives, in a form approved by the Representatives and Servicing attached as Schedule III hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). The Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(l) To The Company represents that it has not made, and agrees that, unless it obtains the extentprior consent of the Representatives, if anyand each Underwriter represents and agrees that, that unless it obtains the ratings provided with respect prior consent of the Company and the Representatives, it will not make, any offer relating to the Certificates by either Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions Securities Act) required to be filed by the Company with the Commission or CPS, CPS shall, or shall cause retained by the Company tounder Rule 433 of the Securities Act; provided that the prior consent of the Company and Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectus included in Schedule II to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Company and Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, furnish such documents as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and take (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, where required, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act, (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 6(k) or (iv) information describing comparable bond prices in any Bloomberg L.P. or other actionselectronic communication.
(m) On If immediately prior to the Closing Datethird anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company and CPS shall cause the Certificate Insurer to issue the Policy will prior to the Trustee for Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the benefit Notes, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will use its reasonable best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the holders Notes to continue as contemplated in the expired registration statement relating to the Notes. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(n) If at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use its reasonable efforts to cause such registration statement of post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action reasonably necessary or appropriate to permit the public offering and sale of the Certificates Notes to continue as contemplated in form the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(o) The Company agrees to pay the required Commission filing fees relating to the Notes within the time required by and substance satisfactory in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
(p) The Company will not take, directly or indirectly, any action designed to each Underwritercause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Notes. The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during with ▇▇▇▇▇▇ of each amendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchasertimely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company shall not misleadingfile such documents or amendments without also furnishing copies thereof prior to such filing to the Representative and Dewey Ballantine LLP.
(c) The Company will endeavor, orin coo▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇he Underwriters, if to qualify the Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Representative may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is necessary at any time not so qualified or to amend file a consent to service of process or supplement the Final Prospectus to file annual reports or to comply with any law or other requirements in connection with such qualification deemed by the Company to file be unduly burdensome.
(d) The Company will make generally available to its security holders as soon as practicable but not later than 45 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense covering a twelve-month period beginning not later than ▇▇▇ first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawRegistration Statement.
(e) The Company will cooperate with use its best efforts to effect the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution listing of the Certificates, except that Senior Notes on the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesNew York Stock Exchange.
(f) The Company shall not investAs soon as practicable after the date of this Agreement, or otherwise use and in any event within the proceeds received time prescribed by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company Rule 424 under the 1940 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Representative of such filing and to confirm such advice in writing.
(g) Until During a period of 15 days from the retirement date of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstthis Agreement, the Company will deliver not, without the Representative's prior written consent, directly or indirectly, sell, offer to each Underwriter sell, grant any option for the annual statements of compliance and sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the annual independent certified public accountant's reports furnished Senior Notes or any debt securities substantially similar to the Trustee Senior Notes (except for the Senior Notes issued pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company ). The Representative agrees that commercial paper or CPS other debt securities with scheduled maturities of less than one year are not subject to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of this Section 11(a) of the Act (including Rule 158 promulgated thereunder3(g).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Representative, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(ec) The Company will cooperate endeavor, in cooperation with the Underwriters in endeavoring Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of this Agreement, the Act Company will not, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (including Rule 158 promulgated thereunderexcept for the Senior Notes issued pursuant to this Agreement).
(jf) So long As soon as any practicable after the date of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersthis Agreement, and deliver in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant and to advise the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership Representative of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementto confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A and (ii) not file any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has of which you shall not previously have been advised and furnished to each of the Underwriters with a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters you shall have reasonably objects and objected in writing or which is not in compliance with the 1933 Securities Act Regulations. CPS or the rules and regulations of the Commission.
(b) The Company will promptly advise notify each Underwriter in the Underwriters event of (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or for supplement to the Final Prospectus or for any other additional information; , (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, (iii) the institution or the notice of intended institution of any action or proceeding for that purpose; and , (viiv) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates shares for sale in any jurisdiction jurisdiction, or (v) the receipt by the Company of notice of the initiation or threatening of any proceeding for such purpose. CPS The Company will use its best efforts make every reasonable effort to prevent the issuance of any such a stop order or the suspension of any such qualification and, if issued or suspendedsuch an order shall at any time be issued, to obtain as soon as possible the withdrawal thereof.
(b) Prior to thereof at the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusearliest possible moment.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at (i) on or before the Closing Date, two deliver to you a signed copies copy of the Registration Statement as originally filed and all amendments of each amendment thereto including all exhibits filed therewith, and will deliver prior to the Underwriters such number time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copy of copies of each post-effective amendment, if any, to the Registration Statement (including such number of copies of the together with, in each case, all exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed thereto unless previously furnished to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(dyou) The Company will, and will cause the Trust toalso deliver to you, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as for distribution to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light a sufficient number of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.conformed
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatCall Holder as follows:
(a) CPS The Company will use its best efforts to cause the Registration Statementprovide prompt notice by telephone, if not effective at the Execution Time, and any amendment theretoconfirmed in writing (which may include facsimile or other electronic transmission), to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time Call Holder of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; notification or announcement by a "nationally recognized statistical rating organization" (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request as defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act) with regard to the ratings of any amendment securities of the Registration Statement Company, including, without limitation, notification or supplement to announcement of a downgrade in or withdrawal of the Final Prospectus rating of any security of the Company or for notification or announcement of the placement of any other additional information; rating of any securities of the Company under surveillance or review, including placement on CreditWatch or on Watch List with negative implications, or (ii) the occurrence at any time of any event set forth in Section 9(b)(i), (ii), (iii)(A), (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and ), (vi) or (viii) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereofthis Agreement.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, Call Holder:
(i) if required as soon as they are available, copies of any reports and financial statements filed by or on behalf provided in paragraph (e) below for purposes of the Trust remarketing, a then currently effective registration statement (or equivalent document) under the Company with the Commission pursuant Securities Act and a then current prospectus (or equivalent document) relating to the Securities Exchange Act MVPs to be used by the Call Holder for remarketing and resale of 1934the MVPs (such registration statement and any amendments thereto, including any such prospectus relating to the MVPs constituting a part thereof, and all documents incorporated therein by reference, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On amended or before supplemented pursuant to the Closing DateExchange Act, the Securities Act, or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus," respectively, except that if any revised prospectus shall be provided to the Call Holder by the Company and CPS and ▇▇▇▇▇ shall cause for use in connection with the respective computer records remarketing of the Company and CPS and Samco relating to MVPs which differs from the Receivables Prospectus on file at the Commission at the time the Registration Statement becomes effective (whether or not such revised prospectus is required to be marked filed by the Company pursuant to show the Trustee's absolute ownership Rule 424(b) of the ReceivablesSecurities Act Regulations), and the term "Prospectus" shall refer to such revised prospectus from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings time it is first provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish Call Holder for such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.use);
Appears in 1 contract
Sources: Remarketing and Interest Calculation Agreement (Browning Ferris Industries Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters endeavor, in endeavoring cooper▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Representative of such filing and to confirm such advice in writing.
(f) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingthis Agreement, the Company will furnish not, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Underwriters copies of all reports Senior Notes (except for the Senior Notes issued pursuant to this Agreement). The Representative agrees that commercial paper or other communications (financial or otherwise) furnished or made available debt securities with scheduled maturities of less than one year are not subject to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestthis Section 3(f).
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Timetime of execution of this Agreement, and any amendment amendments thereto, to become effective as soon promptly as reasonably practicable thereafter possible. The Company shall prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act no later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(bRules.
b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will The Company shall promptly advise the Underwriters Representatives in writing (i) when any post-effective amendment to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, Statement shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (viii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the institution or threatening of any proceeding for that purposepurchase; and (viiv) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (v) of the occurrence of any event during the period described in Section 3(c) hereof that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. CPS will The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any document incorporated by reference in the Registration Statement unless the Company has furnished the Representatives a copy for review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible the withdrawal thereof.
(bc) Prior During the time when a Prospectus is required to be delivered under the Act, or the Exchange Act, the Company will use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Rules and the Exchange Act and by the regulations under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any time when a Prospectus relating to the filing thereof Public Securities is required to be delivered under the Act, or the Exchange Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representatives promptly and prepare and file with the Commission, CPS will submit subject to each Section 3(b) hereof, an appropriate amendment or supplement in accordance with Section 10 of the UnderwritersAct.
d) The Company will use its best efforts to receive approval as expeditiously as possible for the quotation of the Securities on the OTC Bulletin Board.
e) For a period of seven years from the Effective Date, for its approval after reasonable notice thereof, or until such approval not earlier time upon which the Company is required to be unreasonably withheld liquidated, the Company will use its best efforts to maintain the registration of the Firm Units, Common Stock, Class B Common Stock and Class A and Class B Warrants under the provisions of the Exchange Act. The Company will not deregister the Firm Units, Common Stock, Class B Common Stock and Class A and Class B Warrants under the Exchange Act without the prior written consent of the Representatives.
f) The Company will endeavor in good faith, in cooperation with the Representatives, at or delayed, a copy of any post-- effective amendment prior to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into time the Registration Statement becomes effective, to qualify the Public Securities for offering and sale under the securities laws of Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Maryland, New York and Rhode Island and such jurisdictions as the Representatives may reasonably designate within the United States, provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to taxation as a foreign corporation doing business in such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representatives agree that such action is not at the time necessary or Final Prospectusadvisable, use all reasonable efforts to file and make such statements or reports at such times as are or may be required by the laws of such jurisdiction. In New York and Hawaii, the Company may rely on exemptions from the state registration requirements for transactions between an issuer and an underwriter involving a firm-commitment underwritten offering. In the other states, the Company has applied to have the Firm Units registered for sale and will not sell the Firm Units in any state until such registration is effective.
(cg) The Company will deliver toto each of the several Underwriters, or upon the order of, the Underwriterswithout charge, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters time during the period when delivery of a Final the Prospectus is required to be delivered under the 1933 Act or the Exchange Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of each Preliminary Prospectus and the Prospectus as such Underwriters may reasonably request and, as soon as the Registration Statement (or any amendment or supplement thereto becomes effective, deliver to you two original executed Registration Statements, including such number of exhibits, and all post-effective amendments thereto and copies of the all exhibits filed therewith or incorporated therein by reference and all original executed consents of certified experts.
h) For a period of seven years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent certified public accountants to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 8-K or quarterly reports and the mailing of quarterly financial information to stockholders.
i) The Company will not consummate a Business Combination with any entity which is affiliated with any Initial Stockholder unless the Company obtains an opinion from an independent investment banking firm that the Business Combination is fair to the Company’s stockholders from a financial perspective.
j) The Company has entered into a letter agreement regarding administrative support with Primus Capital LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇, MTP Holdings LLC and ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ pursuant to which the above entities and individuals shall make available to the Company certain office and secretarial services as may reasonably be requestedrequired by the Company from time to time for $7,500 per month in the aggregate.
k) Except as set forth above in Section 3(j), including documents filed the Company shall not pay any Initial Stockholder or any of their affiliates any fees or compensation from the Company for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided that the Initial Stockholders shall be entitled to reimbursement from the Company for their reasonable out-of-pocket expenses incurred in connection with seeking and consummating a Business Combination; and provided, further, that such persons shall be entitled to receive, in accordance with applicable law, upon consummation of a Business Combination, commissions for monies raised by them for the Company in connection with such Business Combination, at rates which are no less favorable to the Company than those which the Company would pay to unaffiliated third parties.
l) The Company will apply to be included in Standard & Poor’s Daily News and Corporation Records Corporate Descriptions for a period of five years from the consummation of a Business Combination. Promptly after the consummation of the Offering, the Company shall take such steps as may be necessary to obtain a secondary market trading exemption for the Company’s securities in the State of California. The Company shall also take such other action as may be reasonably requested by the Representatives to obtain a secondary market trading exemption in such other states as may be reasonably requested by the Representatives.
m) The Company hereby engages the Representatives, on a non-exclusive basis, as its agents for the solicitation of the exercise of the Class A and Class B Warrants. The Company will (i) assist the Representatives with respect to such solicitation, if requested by the Representatives; and (ii) at the Representatives’ request, provide the Representatives, and direct the Company’s transfer and warrant agent to provide to the Representatives, at the Company’s cost, lists of the record and, to the extent known, beneficial owners of, the Class A and Class B Warrants. Commencing one year from the Effective Date, the Company will pay the Representatives a commission of 5% of the exercise price of the Class A and Class B Warrants for each Warrant exercised, payable on the date of such exercise, on the terms provided for in the Warrant Agreement, only if permitted under the 1934 Act rules and deemed regulations of the NASD and the Exchange Act, and only to the extent that an investor who exercises his Warrants specifically designates, in writing, that the Representatives solicited his exercise. The Representatives may engage sub-agents in their solicitation efforts. The Company agrees to disclose the arrangement to pay such solicitation fees to the Representatives in any Prospectus used by the Company in connection with the registration of the shares of Common Stock underlying the Warrants.
n) Promptly after the execution of a definitive agreement for a Business Combination, the Company shall retain a financial public relations firm reasonably acceptable to the Representatives for a term to be incorporated agreed upon by reference thereinthe Company and the Representatives.
o) For a period of seven years from the Effective Date or until such earlier time at which the Company is liquidated, the Company will furnish to the Representatives and their counsel, if requested, copies (which may be electronic copies) of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities, and promptly furnish to the Representatives, if requested (i) a copy of all amendments theretoeach periodic report the Company shall be required to file with the Commission; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy of each Form 8-K or Schedules 13D, l3G, 14D-l or 13E-4 received or prepared by the Company; (iv) five copies of each registration statement filed by the Company with the Commission under the Securities Act; (v) a copy of monthly statements, if any, setting forth such information regarding the Company’s results of operations and financial position (including balance sheet, profit and loss statements and data regarding outstanding purchase orders) as is regularly prepared by management of the Company; and (vi) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Underwriters Representatives may from time to time reasonably request.
p) For a period of seven years following the Effective Date or until such earlier time at which the Company is liquidated, the Company shall retain a transfer and warrant agent acceptable to the Representatives (d“Transfer Agent”) The Company will, and will cause furnish to the Representatives at the Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representatives may request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. The Representatives acknowledge that Continental Stock Transfer & Trust toCompany is an acceptable Transfer Agent.
q) During such time as the Public Securities are quoted on the OTC Bulletin Board (or any successor trading market such as the Bulletin Board Exchange) or the Pink Sheets, comply with the 1933 ActLLC (or similar publisher of quotations) and no other automated quotation system, the 1933 Act RegulationsCompany shall provide to the Representatives, at its expense, such reports published by the 1934 Act and NASD or the 1934 Act RegulationsPink Sheets, so as LLC relating to permit the completion price trading of the distribution of Public Securities, as the Certificates as contemplated in this Agreement and Representatives shall reasonably request.
r) For a period equal to seven years from the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actdate hereof, the Company will promptly notify not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the registration of the Class A and Class B Warrants and the Representatives’ Class A and Class B Warrants under the Act.
s) The Company hereby agrees to pay on each of the Underwriters Closing Date and will promptly either (i) prepare and filethe Option Closing Date, or cause to be prepared and filedif any, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will extent not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including paid on the Closing Date, furnish, or cause all expenses incident to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each the performance of them and their respective affairs as each Underwriter may from time to time reasonably request and which the obligations of the Company or CPS possess or can acquire without unreasonable effort or expenseunder this Agreement, including any but not limited to:
i) the preparation, printing, filing and all documentation requested in connection mailing (including the payment of postage with respect to such Underwriter's due diligence efforts regarding information in mailing) of the Registration Statement and exhibits thereto, the Preliminary and Final Prospectus Prospectuses and the printing and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in order to evidence quantities as may be required by the accuracy or completeness of any Underwriters;
ii) the printing, engraving, issuance and delivery of the conditions contained Firm Units, the shares of Common Stock, Class B Common Stock , the Class A and Class B Warrants included in this Agreement; the Firm Units and the Representatives' Purchase Option, including any transfer or other taxes payable thereon;
iii) the qualification of the Public Securities under state or foreign securities or Blue Sky laws, including the costs of printing and mailing the Preliminary and Final Blue Sky Memoranda and all actions taken by amendments and supplements thereto, fees and disbursements of underwriter’s counsel retained for such purpose; (iv) filing fees, costs and expenses incurred in registering the Company Offering with the NASD;
iv) fees of counsel and accountants for the Company;
v) costs of preparing and delivering to the Representatives and their counsel, bound volumes containing copies of all documents and appropriate correspondence filed with or CPS to authorize received from the sale Commission and the NASD and all closing documents;
vi) fees and disbursements of the Certificates shall be reasonably satisfactory in form transfer and substance warrant agent for the Company's securities;
vii) fees and disbursements to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after Escrow Agent and trustee under the Effective Date, an earnings statement terms and conditions of the Trust covering Agreement;
viii) the Company’s expenses up to a period maximum of at least twelve consecutive months beginning after such Effective Date $___________, associated with “due diligence” meetings arranged by the Representatives including a videotape or powerpoint presentation;
ix) costs of placing “tombstone” advertisements in The Wall Street Journal, The New York Times and satisfying a third publication to be selected by the provisions Representatives not to exceed $10,000; and
x) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 11(a) of the Act (including Rule 158 promulgated thereunder3(s).
(jt) So long as any The Representatives may deduct from the net proceeds of the Certificates are outstanding, Offering payable to the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, or the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Option Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extentDate, if any, that the ratings provided with respect expenses set forth in Section 3(s) to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions be paid by the Company or CPS, CPS shall, or shall cause to the Representatives and others. If all of the conditions precedent for the Company to, furnish such documents to consummate this offering have been met and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause refuses to consummate this Offering, then the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.Repre
Appears in 1 contract
Sources: Underwriting Agreement (Middle Kingdom Alliance Corp.)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS The Company will (i) use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, Statement to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior 430A of the Rules and Regulations; (ii) timely file with the Commission under Rule 433 of the Rules and Regulations any Permitted Free Writing Prospectus required to be filed by it under such rule; (iii) not file any amendment to the Registration Statement (including any filing under Rule 462(b)) or supplement to the Prospectus, any Preliminary Prospectus or any Permitted Free Writing Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations; and (iv) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Certificates, CPS Shares by the Underwriters.
(b) The Company will not file take, directly or indirectly, any amendment action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Registration Statement or amendment or supplement (including the Final Prospectus or price of any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each securities of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any Company in violation of the Underwriters reasonably objects Rules and which is Regulations, including, but not in compliance with limited to, Regulation M of the 1933 Act Regulations. CPS Exchange Act.
(c) The Company will promptly advise the Underwriters Representative promptly (i) when the Registration Statement, if not Statement or any post-effective at the Execution Time, and any amendment thereto, thereto shall have become effective; (ii) when of receipt of any comments from the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b)Commission; (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by of the Commission for any amendment of the Registration Statement or for supplement to the Final Prospectus, any Preliminary Prospectus or any Permitted Free Writing Prospectus or for any other additional information; and (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus, any Preliminary Prospectus or any Permitted Free Writing Prospectus or of the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the suspension use of any such qualification and, if issued or suspended, the Prospectus and to obtain as soon as possible the withdrawal lifting thereof, if issued.
(bd) Prior to the filing thereof The Company will cooperate with the CommissionRepresentative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, CPS will submit file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to each qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusShares.
(ce) The Company will deliver to, or upon the order of, the UnderwritersRepresentative, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters Representative may reasonably request. The Company will deliver to, or upon the order of, the Underwriters Representative during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final ProspectusProspectus in final form, or as thereafter amended or supplemented, as the Underwriters Representative may reasonably request. The Company will deliver to the Underwriters Representative at or before the Closing Date, two four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, ) and of all amendments thereto, as the Underwriters Representative may from time to time reasonably request.
(df) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Shares as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered (whether physically or through compliance with Rule 172 of the Rules and Regulations or any similar rule) by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus, any Preliminary Prospectus or any Permitted Free Writing Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus such document is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus, any Preliminary Prospectus or any Permitted Free Writing Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus, Preliminary Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Permitted Free Writing Prospectus so that the Final Prospectus document as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus document will comply with applicable the law.
(eg) The Company will cooperate with timely file such reports pursuant to the Underwriters Exchange Act as are necessary in endeavoring order to qualify the Certificates for sale under the laws of such jurisdictions make generally available to its securityholders as the Underwriters may designate and will maintain such qualifications in effect so long soon as required practicable an earnings statement for the distribution purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the CertificatesAct.
(h) Prior to the Closing Date, except that the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(i) The Company will use its best efforts to effect and maintain the quotation of the Shares on the Nasdaq National Market and will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
(j) During a period of 180 days from the date of the Prospectus (the “Restricted Period”), the Company will not, without the prior written consent of the Representative, directly or indirectly, (i) 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 or otherwise transfer or dispose of any share of Common Stock or any Shares convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap, hedge or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap, hedge or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be obligated sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant outstanding on the date hereof and referred to qualify in the Certificates Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Prospectus or the Pulaski Financial Corp. 2006 Long-Term Incentive Plan, (D) any jurisdiction issuance of shares of Common Stock pursuant to the Merger Agreement or (E) any transfer, sale or other disposition with the prior written consent of the Representative. The Representative agrees, for the benefit of the other Underwriters, if applicable, not to provide such consent without providing notice to each Underwriter to permit compliance with applicable provisions of NASD Conduct Rule 2711(f) restricting publication and distribution of research and public appearances by research analysts before and after the expiration, waiver or termination of a lock-up agreement and agrees only to provide consent in circumstances that will permit such compliance by the Underwriters. Notwithstanding the foregoing, in the event that either (i) during the period that begins on the date that is 15 calendar days plus three (3) business days before the last day of the Restricted Period and ends on the last day of the Restricted Period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (ii) prior to the expiration of the Restricted Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Restricted Period, the restrictions set forth herein will continue to apply until the expiration of the date that is 15 calendar days plus three (3) business days after the date on which such qualification would require the earnings release is issued or the material news or event related to the Company occurs.
(k) The Company has caused each officer and director of the Company to qualify furnish to do business as the Representative, on or prior to the date of this agreement, a foreign corporationletter or letters, file a general or unlimited consent in form and substance satisfactory to service of process or subject itself to taxation in any such jurisdiction the Underwriters, pursuant to which it is each such person shall agree not subject and will arrange to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company, or any other securities exchangeable or exercisable for Common Stock of the Company or derivative of Common Stock of the Company owned by such person or request the registration for the determination offer or sale of any of the legality foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the effective date of the Certificates for purchase by institutional investors. Registration Statement, directly or indirectly, except with the prior written consent of the Representative (“Lock-Up Agreements”).
(l) The Company willshall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus, from time each Preliminary Prospectus and any Permitted Free Writing Prospectus and shall report with the Commission with respect to time, prepare the sale of the Shares and file such statements, reports, and other documents the application of the proceeds therefrom as are or may be required to continue such qualifications in effect for so long a period as accordance with Rule 463 under the Underwriters may reasonably request for distribution of the CertificatesAct.
(fm) The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Certificates Shares in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Act.
(gn) Until The Company will maintain a transfer agent and, if necessary under the retirement jurisdiction of incorporation of the CertificatesCompany, or until such time as a registrar for the Underwriters shall cease Common Stock.
(o) Prior to maintain a secondary market in the Certificates, whichever occurs firstClosing Date, the Company will deliver to each Underwriter the annual statements of compliance not issue any press releases or other communications directly or indirectly and the annual independent certified public accountant's reports furnished will hold no press conferences with respect to the Trustee pursuant to Company or its Subsidiaries, on the Pooling and Servicing Agreementfinancial condition, as soon as such statements and reports are furnished to results of operations, business, properties, assets or liabilities of the TrusteeCompany or its Subsidiaries, or the offering of the Shares, without the prior written consent of the Representative.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(ip) The Company will cause advise the Trust Representative promptly of any notice prior to make generally available the Closing Date indicating the termination of or intention to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement terminate any of the Trust covering a period contracts or agreements referred to or described in the Registration Statement, the Prospectus, any Preliminary Prospectus or any Permitted Free Writing Prospectus, or filed as an exhibit to the Registration Statement or any document incorporated therein by reference, or of at least twelve consecutive months beginning after any threatened termination (written or oral) by the Company, any Subsidiary or any other party to any such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)contract or agreement.
(jq) So long as The Company, during the period when the Prospectus is required to be delivered (whether physically or through compliance with Rule 172 under the Rules and Regulations or any of similar rule) under the Certificates are outstandingAct, the Company will furnish file all documents required to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements be filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, within the time periods required by the Exchange Act and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestExchange Act Regulations.
(kr) On During the time when a prospectus is required to be delivered (whether physically or before through compliance with Rule 172 under the Closing DateRules and Regulations or any similar rule) under the Act, the Company and CPS and shall at all times comply, in all material respects, with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ shall cause Act, including the respective computer records of the Company related rules and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted regulations promulgated thereunder by the Pooling Commission and Servicing AgreementThe Nasdaq National Market, Inc., in effect from time to time.
(ls) To In accordance with the extent, if any, that the ratings provided with respect Cuba Act and without limitation to the Certificates by either provisions of Section 10 hereof, the Rating Agencies is conditional upon the furnishing Company agrees to indemnify and hold harmless each Underwriter from and against any and all loss, liability, claim, damage and expense whatsoever (including fees and disbursements of documents or the taking counsel), as incurred, arising out of any other actions violation by the Company or CPS, CPS shall, or shall cause of the Company to, furnish such documents and take any such other actionsCuba Act.
(mt) On The Company will file as soon as practicable following the Closing Datea “Notification Form: Change in the Number of Shares Outstanding” with the Nasdaq National Market, the Inc.
(u) The Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit will comply with Rule 433(g) of the holders of the Certificates in form Rules and substance satisfactory to each UnderwriterRegulations.
Appears in 1 contract
Covenants of the Company. The Company acknowledges, covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the The Registration Statement, if not effective at the Execution TimeStatement and any amendments thereto have been declared effective, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) a Final Prospectus containing information previously omitted at pursuant to Rule 424(b) within the prescribed time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior period and will provide evidence satisfactory to the termination Representative of such timely filing.
(b) The Company will notify the offering of Representative immediately (and, if requested by the CertificatesRepresentative, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any confirm such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not notice in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing): (i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or for any additional information, (iii) of the Company's intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Final Registration Statement, the Sale Preliminary Prospectus or for any other additional information; the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; and the Company shall make every effort to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS possible. The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Sale Preliminary Prospectus or the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement or a copy of file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which the Representative shall object in writing after being timely furnished in advance a copy thereof. The Company will provide the Representative with copies of all such amendments, filings and other documents prior to any filing or Final Prospectus.other publication thereof and also afford the Representative a reasonable opportunity and time to review and comment thereon. Maxim Group LLC October 18, 2006 Page 21 of 39
(c) The Company will deliver to, or upon shall comply with the order ofSecurities Act, the Underwriters, from time Exchange Act and all applicable Rules and Regulations to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies permit completion of the Final Prospectusdistribution as contemplated in this Agreement, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewiththe Prospectus. If, and will deliver at any time when a prospectus relating to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably Shares is required to be requested), including documents filed delivered under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Securities Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement all applicable Rules and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer Regulations in connection with the sale sales of any CertificatesShares, any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time of delivery to the Final Prospectus is delivered to a purchaser, not misleading, oror if, if to comply with the Securities Act, the Exchange Act or the Rules and Regulations, it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or Registration Statement, or to file under the 1934 Act any document which would be deemed is an exhibit to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActProspectus or in any amendment thereof or supplement thereto, the Company will notify the Representative promptly notify each of and prepare and file with the Underwriters Commission, subject to Section 4(a) hereof, an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Representative) which will correct such statement or omission or which will effect such compliance and will promptly either (i) prepare and file, or cause use its best efforts to be prepared and filed, with the Commission an appropriate have any amendment to the Registration Statement declared effective as soon as possible.
(d) The Company will promptly deliver to the Underwriters and Underwriters' Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company's files manually signed copies of such documents for at least five (5) years after the date of filing thereof. The Company will promptly deliver to each of the Underwriters such number of copies of the Sale Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents which are exhibits to the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as the Underwriters may reasonably request. Prior to 10:00 A.M., New York time, on the Final Prospectus or (ii) prepare business day next succeeding the date of this Agreement and filefrom time to time thereafter, or cause to be prepared and filed, the Company will furnish the Underwriters with the Commission (at the expense copies of the Company) an appropriate filing under Prospectus in New York City in such quantities as the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriters may reasonably request.
(e) The Company will cooperate with consents to the use and delivery of the Sale Preliminary Prospectus by the Underwriters in endeavoring accordance with Rule 430 and Section 4(b) of the Securities Act.
(f) If the Company elects to rely on Rule 462(b) under the Securities Act, the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Securities Act by the earlier of: (i) 10:00 p.m., New York City time, on the date of this Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2). Maxim Group LLC October 18, 2006 Page 22 of 39
(g) During the period of 180 days after the effective date of the Registration Statement, neither the Company nor any of its Affiliates will directly or indirectly, take any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(h) The Company will use its best efforts, in cooperation with the Representative, at or prior to the time of effectiveness of the Registration Statement, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions jurisdictions, domestic or foreign, as the Underwriters Representative may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in under the laws of any such jurisdiction to which state where it is not presently qualified or where it would be subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents taxation as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterforeign corporation.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders and to the Underwriters as soon as practicable, but no in any event not later than sixteen twelve (12) months after the Effective Dateeffective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an audited earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Company complying with Section 11(a) of the Securities Act and the Rules and Regulations (including including, at the option of the Company, Rule 158 promulgated thereunder158).
(j) So long as any During the twelve (12) months following the Closing Date, without the consent of the Certificates are outstandingRepresentative which shall not be unreasonably withheld, the Company will furnish not file any registration statement relating to the Underwriters copies offer or sale of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersany of the Company's securities, and deliver to the Underwriters during such periodincluding any Registration Statement on Form S-8, except: (i) as soon as they are available, copies of any reports and financial statements a Form S-8 filed by or on behalf of the Trust or the Company with the Commission pursuant to in connection with the Securities Exchange Act of 1934, as amended, Company's Stock Option Plan and (ii) such additional information concerning a registration statement to register the business and financial condition resale of certain shares of Common Stock representing accrued interest owed to or held by certain private placement investors of the Company as the Underwriter may from time and shares of Common Stock to time reasonably request.
(k) On or before the Closing DateAjax Capital, the Company and CPS and LLC, ▇▇▇▇▇▇▇ shall cause ▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., Valor Capital Management, LP and Millennium Partners, L.P.
(k) Each of the respective computer records Company's officers and directors and certain of its shareholders (the "INSIDER LOCK-UP PARTIES") shall, prior to the Closing, enter into a written "lock-up" agreement with the Representative in the form in the form attached hereto as Annex IV. The names of the Insider Lock-Up Parties will be as previously agreed to by the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementRepresentative.
(l) To Certain of the extentCompany's shareholders who were investors in previous private placements of the Company's securities (the "INVESTOR LOCK-UP PARTIES") shall, if any, that the ratings provided with respect prior to the Certificates by either Closing, enter into a written "lock-up" agreement with the Representative in the form in the form attached hereto as Annex V. The names of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions Investor Lock-Up Parties will be as previously agreed to by the Company or CPSand the Representative. Maxim Group LLC October 18, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.2006 Page 23 of 39
(m) On During the twelve (12) month period following the Closing Date, offer, the Company and CPS shall cause not, without the Certificate Insurer to issue prior written consent of the Policy Representative, sell or distribute any of its securities, other than pursuant the Company's 2004 Employee Stock Option Plan or the Company's 2004 Incentive Stock Option Plan or pursuant to the Trustee for the benefit terms of any securities exercisable or convertible into shares of the holders Company's capital stock that are outstanding at the Closing Date.
(n) During the twenty-four (24) months following the Closing, offer, sell or distribute any convertible securities convertible at a price that may, at the time of conversion, be less than the Fair Market Value of the Certificates in form Common Stock on the date of the original sale, without the consent of the Representative, which consent shall not be unreasonably withheld, conditioned or delayed. For purposes of this Section 4, the term "FAIR MARKET VALUE" shall mean the greater of: (i) the average of the volume weighted average price of the Company's common stock for each of the 30 trading days prior to the date of the original sale; and substance satisfactory to each Underwriter(ii) the last sale price of the Common Stock, during normal operating hours, as reported on the AMEX, or any other exchange or electronic quotation system on which the Common Stock is then listed.
Appears in 1 contract
Covenants of the Company. 6.1 The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS To use its best efforts to bring about the effectiveness of the Registration Statement, and the Company will not, at any time, whether before or after the effective date, file any amendment to the Registration Statement or Prospectus or supplement thereto of which you and your counsel shall not previously have been advised and furnished with a copy or to which you or your counsel shall have objected or that is not in compliance with the Act and the Rules and Regulations, and as soon as the Company is advised thereof, to advise the Representatives and confirm this advice in writing (i) when the Registration Statement has become effective and (ii) of the issuance by the Commission, AMEX or any state securities or "Blue Sky" commissioner or authority of any order suspending the effectiveness of the Registration Statement, the listing of the Common Stock or the Shares, or any qualification of the Shares, or prohibiting the offer or sale of the Shares or the initiation or threatening of any proceedings for any such purpose, and to use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, issuing authority to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file lift any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereoforder.
(b) Prior to the filing thereof with the CommissionTo deliver, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at on or before the Closing Date, two signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause thereafter until the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the earlier of completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during offering or the period as, in which a prospectus the opinion of counsel for the Underwriters, the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer dealer, without charge, to the Representatives, and to send to the several Underwriters, at such office or offices as any Representative may designate, as many copies of the preliminary prospectus and Prospectus as the Representatives may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(c) To furnish each Representative and their counsel, without charge, one executed copy of the Registration Statement (including exhibits) and of any amendments thereto and to furnish each Representative, without charge, a reasonable number of conformed copies of the Registration Statement (excluding exhibits) and of any amendments thereto.
(d) To furnish each Representative and their counsel with a copy of each proposed amendment or supplement before amending or supplementing the Registration Statement or the Prospectus.
(e) Until the earlier of completion of the offering or the period as, in the opinion of counsel for the Underwriters, the Prospectus is required by law to be delivered in connection with the sale of any Certificatessales by an Underwriter or dealer, if any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, which it becomes shall be necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at when the time the Final Prospectus is delivered to a purchaser, not misleading, orforthwith to prepare and furnish, if it is necessary at any time its own expense, to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and to dealers (whose names and addresses the Representatives will promptly either (i) prepare and file, or cause furnish to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under to whom Shares may have been sold by the 1934 Act which shall be incorporated by reference in Representatives and to any other dealers upon request, either amendments or supplements to the Final Prospectus so that the Final Prospectus statements in the Prospectus, as so amended or supplemented supplemented, will not, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, be misleading. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or so that supplement shall constitute a waiver of any of the Final Prospectus will comply with applicable lawconditions set forth in Section 5.
(ef) The To make generally available to the Company's security holders, as soon as practicable, but not later than fifteen months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a period of twelve months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of the last paragraph of Section 11(a) of the Act, including, at the option of the Company, Rule 158.
(g) For a period of three years following the date of this Agreement, to supply to the Representatives, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company will may from time to time furnish generally to holders of any class of its securities, and to furnish the Representatives a copy of each annual report on Form 10-K which it files with the Commission.
(h) To cooperate with the Underwriters Representatives in endeavoring an endeavor to qualify the Certificates Shares for offer and sale under the "Blue Sky" laws of such jurisdictions of the United States as the Underwriters Representatives may designate request, and will maintain such qualifications in effect so long as required to pay, or reimburse if paid by a Representative, fees and disbursements of counsel for the distribution of the CertificatesUnderwriters and all other expenses and filing fees in connection therewith; provided, except however, that the Company will shall not be obligated required to qualify the Certificates in file any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation as doing business in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesjurisdiction.
(fi) The Company shall not investFor a period of three years following the date of this Agreement, or otherwise use to comply to the proceeds received by best of its ability with the Act, the Rules and Regulations and the Exchange Act, as amended, and the rules and regulations thereunder, and the rules and regulations of AMEX so as to permit the continuance of sales and dealings in the Common Stock of the Company on AMEX.
(j) To apply the net proceeds from its the sale of the Certificates Shares in such a manner as would require accordance with the Company, CPS or statements made under "Use of Proceeds" in the Trust Prospectus and to register as an investment company comply with Rule 463 under the 1940 Act.
(k) To promptly supply the Representatives and their counsel with copies of all correspondence to and from and all documents issued to and by the Commission and AMEX in connection with the registration of the Shares under the Act and the listing of the Shares on AMEX.
6.2 The Company covenants and agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, all costs and expenses incident to the entry into and performance under this Agreement by the Company, and without limiting the generality of the foregoing, all costs and expenses incident to (a) the issuance, purchase, sale and delivery of the Shares to the Underwriters, (b) the registration of the Shares and preparing, printing and shipping the Registration Statement and the underwriting documents, (c) the filing fees of the Commission, the NASD, AMEX (including AMEX listing fees for the Shares) and state securities and "Blue Sky" commissioners and authorities in connection with the Registration Statement and this Agreement, and the fees, disbursements and expenses of counsel in connection with state securities or "Blue Sky" matters and review by the NASD, (d) the fees and disbursements of counsel and accountants for the Company and its subsidiaries, (e) the furnishing to the Representatives and the other Underwriters of copies of the Registration Statement, any preliminary prospectus, the Prospectus, this Agreement, the Blue Sky Survey (preliminary and final), and of the documents required by paragraphs (b), (c), (d) and (e) of Section 6.1, to be so furnished, including costs of preparing, printing and shipment, (f) the preparation, printing, mailing, delivery, filing and distribution by the Company of all supplements and amendments to the Prospectus required by paragraph (e) of Section 6.1, and (g) Until the retirement furnishing to the Representatives and the other Underwriters of all reports and financial statements required by paragraphs (f) and (g) of Section 6.
1. Except as provided below, and except as otherwise provided in Section 7, except for the $40,000 that the Company paid directly to Rutan & Tucker, LLP, which amount covers fees and expenses of coun▇▇▇ ▇hat ▇▇▇▇ actually been incurred by the Underwriters prior to the date of this Agreement, the Representatives will pay the fees and costs of their counsel. If the sale of any of the Certificates, Shares to the several Underwriters pursuant to this Agreement is not consummated for any reason other than as set forth in clauses (ii) through (viii) of Section 8.2 or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstSection 9, the Company will deliver reimburse the several Underwriters for all of their out-of-pocket expenses (including fees and expenses of counsel) actually incurred by the Underwriters in connection with this Agreement or in investigating, preparing to each Underwriter market or marketing the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the TrusteeShares.
(h) 6.3 The Company covenants and agrees that except as expressly contemplated hereby, it will not, directly or CPS shallindirectly, (a) offer, pledge, sell, offer to 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 any of the shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock, or (b) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or such other securities convertible into, or exercisable or exchangeable for, shares of Common Stock (whether any such transaction described in clause (a) or (b) above is to be settled by delivery of the shares of Common Stock or such other securities, in cash or otherwise), in each case, beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) or otherwise controlled by the Company on the date hereof or hereafter acquired or otherwise controlled, for a period beginning from the date hereof through and continuing to and including the Closing Datedate 180 days after the date of the Prospectus; provided, furnishhowever, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which that the Company or CPS possess or can acquire may, without unreasonable effort or expensethe prior written consent of the Representatives on behalf of the Underwriters, including any and all documentation requested in connection with (i) issue stock options not exercisable during such Underwriter's due diligence efforts regarding information 180-day period pursuant to equity incentive plans described in the Registration Statement and the Final Prospectus to employees, directors and in order to evidence the accuracy or completeness of any consultants of the conditions contained Company, (ii) issue shares upon the exercise of options and warrants and the conversion of preferred stock and convertible debentures, in this Agreement; each case as described in the Registration Statement and all actions taken the Prospectus, (iii) as described in the Registration Statement and Prospectus, issue and deposit into escrow at the First Closing shares of Common Stock of the Company valued at $2.5 million in connection with the Company's acquisition of Altama and Target Sub, and (iv) issue shares of Common Stock or other securities convertible into or exercisable or exchangeable for shares of Common Stock in connection with any acquisition by the Company or CPS to authorize of another entity, provided that the sale Company ensures that the recipient(s) of such securities shall not transfer such securities during the 180-day period following the date of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingProspectus. In addition, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersnot, and deliver to the Underwriters during such 180-day period, (i) as soon as they are available, copies register any shares of Common Stock or any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shallsecurities convertible into, or shall cause the Company toexercisable or exchangeable for, furnish such documents and take any such other actionsCommon Stock.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Phoenix Footwear Group Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best commercially reasonably efforts to cause the Registration Statement, if not effective at the Execution Timetime of execution of this Agreement, and any amendment amendments thereto, to become effective as soon promptly as possible. The Company shall prepare the Prospectus, in a form reasonably practicable thereafter acceptable to the Representative, and file such Prospectus pursuant to Rule 424(b) under the Act no later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by the procedure in Rule 430A is followed, prepare Rules and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior will provide evidence to the termination Representative of such filing.
(b) The Company shall promptly notify the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not Representative in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing (i) when the Registration Statement, if not any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; , (ivii) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (viii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the institution use of any Prospectus or the initiation or threatening of any proceeding for that purpose; and , (viiv) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposepurpose and (v) of the happening of any event during the period described in Section 3(c) hereof that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. CPS will The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any document incorporated by reference in the Registration Statement unless the Company has furnished the Representative a copy for review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best commercially reasonably efforts to prevent the issuance of any such stop order by the Commission with respect to the Registration Statement or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon During the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of the Securities under the Act, or the Exchange Act, the Company will use its commercially reasonably efforts to comply with all requirements imposed upon it by the Act, the Rules and the Exchange Act and by the regulations promulgated under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any Certificatestime when a Prospectus relating to the Public Securities is required to be delivered in connection with the sales of the Securities under the Act, or the Exchange Act, any event shall occur have occurred or a condition shall exists as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend the Registration Statement or amend or supplement the Final Prospectus in order that the Registration Statement or Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will notify the Representative promptly notify each and prepare and file with the Commission, subject to Section 3(b) hereof, an appropriate amendment or supplement in accordance with Section 10 of the Underwriters Act.
(d) For a period of three years from the Effective Date, or until such earlier time upon which the Company is required to be liquidated, the Company will use its commercially reasonably efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act and will promptly either not deregister the Units under the Exchange Act, until (i) prepare the consummation of a sale by the Company of all or substantially all of its assets or a merger or similar transaction in which the Company is not the surviving entity, which consummation has been approved by the holders of at least a majority of the then issued and fileoutstanding voting securities of the Company, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare approval by the holders of at least a majority of the then issued and fileoutstanding voting securities of the Company of the deregistration of the Securities under Exchange Act, or cause to be prepared and filed, with (iii) the Commission (at the expense prior written consent of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawRepresentative.
(e) The Company will cooperate use its commercially reasonable efforts, in cooperation with the Underwriters in endeavoring Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Certificates Public Securities for offering and sale under the applicable securities laws of such jurisdictions as the Underwriters Representative may reasonably designate and will maintain within the United States, provided that no such qualifications in effect so long as qualification shall be required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require where, as a result thereof, the Company would be subject to qualify service of general process or to do business taxation as a foreign corporationcorporation doing business in such jurisdiction. In each jurisdiction where such qualification shall be effected, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from unless the Representative agrees that such action is not at the time necessary or advisable, use commercially reasonably efforts to time, prepare file and file make such statements, reports, and other documents statements or reports at such times as are or may be required by the laws of such jurisdiction. The Company and the Representative agree that with respect to continue such qualifications in effect qualifying the Public Securities for so long a period as offering and sale under securities laws outside of the United States, the Company will be relying solely on the Underwriters and their agents to perfect all filings required by such foreign jurisdictions and to make all such statements and reports at such times as are or may be required by the laws of such foreign jurisdictions; provided that the Company will provide any assistance as reasonably request requested by the Underwriters for distribution of the Certificatessuch perfection.
(f) The Company shall not investhas delivered to each Underwriter, or otherwise use without charge, as many copies of the proceeds received Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby confirms that the Underwriters and dealers were authorized by the Company to distribute or cause to be distributed each Preliminary Prospectus in accordance with the Act and the Rules. The Company will deliver to each Underwriter, without charge, from its sale time to time during the period when the Prospectus is required to be delivered under the Act, the Rules or the Exchange Act, such number of copies of the Certificates in Prospectus as such a manner Underwriters may reasonably request and authorizes the Underwriters and dealers to distribute the Prospectus. As soon as would require practicable after the CompanyRegistration Statement or any amendment or supplement thereto becomes effective (but no later than the Closing Date), CPS the Company agrees to deliver to the Representative two original executed Registration Statements, including exhibits, and all post-effective amendments thereto and copies of all exhibits filed therewith or the Trust to register as an investment company under the 1940 Actincorporated therein by reference and all original executed consents of certified experts.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain The Company will not consummate a secondary market in the Certificates, whichever occurs first, Business Combination with any entity which is affiliated with any Initial Stockholder unless the Company will deliver to each Underwriter obtains an opinion from an independent investment banking firm that the annual statements of compliance and the annual independent certified public accountant's reports furnished Business Combination is fair to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the TrusteeCompany’s stockholders from a financial perspective.
(h) The Except as set forth above in Section 2(ff), the Company shall not pay any Initial Stockholder or CPS shall, any of their affiliates any fees or compensation from the date hereof through and including Company for services rendered to the Closing Date, furnishCompany prior to, or cause in connection with, the consummation of a Business Combination; provided that the Initial Stockholders shall be entitled to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may reimbursement from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested for their reasonable out-of-pocket expenses incurred in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement Offering and the Final Prospectus seeking, negotiating and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterconsummating a Business Combination.
(i) The Company shall take such action, including making such filings, as may be reasonably requested by the Representative to obtain a secondary market trading exemption in such states as may be requested by the Representative.
(j) The Company engages the Representative, on a non-exclusive basis, as its agent for the solicitation of the exercise of the Warrants. The Company will cause (i) assist the Trust Representative with respect to such solicitation, if requested by the Representative, and (ii) at the Representative’s request, provide the Representative, and direct the Company’s transfer and warrant agent to provide to the Representative, at the Company’s cost, lists of the record and, to the extent known, beneficial owners of, the Warrants. Commencing one year from the Effective Date, the Company will pay the Representative a commission of five percent of the exercise price of the Warrants for each Warrant exercised, payable on the date of such exercise, on the terms provided for in the Warrant Agreement, only if permitted under the rules and regulations of the NASD and only to the extent that an investor who exercises his Warrants specifically designates, in writing, that the Representative solicited his exercise. The Representative may engage sub-agents in its solicitation efforts. The Company agrees to disclose the arrangement to pay such solicitation fees to the Representative in any Prospectus used by the Company in connection with the registration of the shares of Common Stock underlying the Warrants.
(k) Promptly after the execution of a definitive agreement for a Business Combination, the Company shall retain a financial public relations firm mutually acceptable to the Representative and the Company for a term to be mutually agreed upon by the Company and the Representative.
(l) The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid on the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement (upon presentation of receipts or other reasonable expense reports), including but not limited to (i) the preparation, printing, filing and mailing (including the payment of postage with respect to such mailing) of the Registration Statement and exhibits thereto, the Preliminary and Final Prospectuses, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be required by the Underwriters, (ii) the printing, engraving, issuance and delivery of the Units, the shares of Common Stock and the Warrants included in the Units and the Representative’s Purchase Option, including any transfer or other taxes payable thereon, (iii) the qualification of the Public Securities under state or foreign securities or Blue Sky laws, including the costs of printing and mailing the Preliminary and Final Blue Sky Memoranda and all amendments and supplements thereto, fees of $7,500 and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) retained for such purpose, (iv) filing fees, costs and expenses (including fees of counsel not to exceed $7,500) incurred in registering the Offering with the NASD, (v) costs of placing “tombstone” advertisements in The Wall Street Journal, The New York Times and a third publication to be selected by the Representative not to exceed $10,000, (vi) fees and disbursements of the Company’s transfer, escrow and warrant agent, (vii) the reasonable cost associated with “due diligence” meetings arranged by the Representative including informational meetings, a videotape or PowerPoint presentation, (viii) the preparation, binding and delivery of transaction books, in form and style reasonably satisfactory to the Representative; (ix) fees of counsel and accountants for the Company, (x) reasonable costs of a background search firm reasonably satisfactory to the Representative. The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company that were paid by the Representative or its legal counsel or agents. If the Offering contemplated by this Agreement is not consummated for any reason whatsoever, then the Company shall reimburse the Representative in full for its out of pocket accountable expenses actually incurred by the Representative (estimated to be $50,000) except for travel and lodging expenses.
(m) The Company further agrees that, in addition to the expenses payable by the Company pursuant to Section 3(l), on the Closing Date, it will pay to the Representative a nonaccountable expense allowance equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Firm Units by deduction from the proceeds of the Offering contemplated herein.
(n) The Company further agrees that, in the event the Representative assists the Company in trying to obtain stockholder approval of a proposed Business Combination, the Company agrees to reimburse the Representative for all out-of-pocket expenses, including, but not limited to, “road-show” and due diligence expenses to the extent such activities were previously approved by the Company.
(o) The Company will apply the net proceeds from the Offering received by it in a manner consistent with the application described under the “Use Of Proceeds” section of the Prospectus.
(p) The Company will make generally available to Certificateholders its security holders as soon as practicable, but no not later than sixteen months after the first day of the fifteenth full calendar month following the Effective Date, an earnings statement (which need not be certified by independent public or independent certified public accountants unless required by the Act or the Rules, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Trust Act) covering a period of at least twelve consecutive months beginning after such the Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Date.
(jq) So long as In the event any person or entity (regardless of any NASD affiliation or association) is engaged to assist the Certificates are outstandingCompany in its search for a merger candidate or to provide any other merger and acquisition services, the Company will furnish provide the following to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver NASD prior to the Underwriters during such period, consummation of the Business Combination: (i) as soon as they are available, complete details of all services and copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, agreements governing such services; and (ii) such additional information concerning justification as to why the business person or entity providing the merger and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company acquisition services should not be considered an “underwriter and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided related person” with respect to the Certificates by either Company’s initial public offering, as such term is defined in Rule 2710 of the Rating Agencies is conditional upon NASD’s Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the furnishing of documents or the taking of any other actions by proxy statement which the Company or CPS, CPS shall, or shall cause will file for purposes of soliciting stockholder approval for the Company to, furnish such documents and take any such other actionsBusiness Combination.
(mr) On Neither the Closing DateCompany, nor, to its knowledge, any of its employees, directors or affiliates (without the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit consent of the holders Representative) has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, stabilization or manipulation of the Certificates price of the Public Securities in form violation of Regulation M promulgated under the Exchange Act.
(s) The Company will maintain a system of internal accounting controls 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 in order to permit preparation of financial statements in accordance with generally accepted accounting principles and substance satisfactory to each Underwriter.maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific au
Appears in 1 contract
Sources: Underwriting Agreement (Trans-India Acquisition Corp)
Covenants of the Company. The Company covenants and agrees with the several Underwriters each Purchaser that:
(a) CPS will use its best efforts to cause The Company shall not amend or supplement the Registration Statement, if not effective at Offering Circular or file any document under the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if Exchange Act before the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(bearlier of (i) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of Notes by the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing Purchasers and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when sixty days after the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination date of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters this Agreement if such document would be deemed to be incorporated by reference into the Registration Statement Offering Circular, which filing is not consented to by you after reasonable notice thereof, such consent not to be unreasonably withheld or Final Prospectusdelayed. The Company shall advise you promptly of the issuance by any State or other regulatory body of any order suspending or preventing the use of the Offering Circular or suspending the qualification of the Notes for offering or sale in any jurisdiction, or of the institution of any proceedings for any such purpose; and the Company shall use its best efforts to prevent the issuance of any such order and, should such an order be issued, to obtain as soon as possible the lifting thereof.
(cb) The Company will deliver to, or upon shall furnish to each of you and to counsel for the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Purchasers such number of copies of the Registration Statement Offering Circular and all amendments and supplements to any of such documents (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents any document filed under the 1934 Exchange Act and deemed to be incorporated by reference thereinin the Offering Circular), in each case as soon as available and of all amendments thereto, in such quantities as the Underwriters you may from time to time reasonably request.
(dc) The Company will, and will cause If at any time prior to the Trust to, comply with 180th day following the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, date hereof there occurs any event shall occur as a result of which, in which the judgment Offering Circular as then amended or supplemented would include an untrue statement of the Company a material fact or in the reasonable opinion of the Underwriters, it becomes omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserthen existing, not misleading, orthe Company shall promptly notify you and shall, if it is necessary at any time subject to Section 4(a) above, amend or supplement the Final Prospectus to comply with any law Offering Circular or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under so as to correct such statement or omission or to effect such compliance.
(d) Whether or not this Agreement becomes effective or is terminated or the 1934 Act which sale of the Notes to the Purchasers is consummated, the Company shall pay or cause to be paid (A) all fees and expenses (including, without limitation, all fees and expenses of the Company’s accountants but excluding fees and expenses of counsel for the Purchasers) incurred in connection with the preparation, printing, delivery and shipping of the Offering Circular, the Indenture, the Registration Rights Agreement and any amendments or supplements to any of the foregoing and any documents incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light into any of the foregoing and the copying, delivery and shipping of this Agreement and Blue Sky Memoranda, (B) all fees and expenses incurred in connection with the preparation and delivery to the Purchasers of the Notes (including the cost of printing the Notes), (C) all filing fees and fees and disbursements of counsel to the Purchasers incurred in connection with the qualification of the Notes under state securities or Blue Sky laws, (D) any fees required to be paid to rating agencies incurred in connection with the rating of the Notes, (E) the fees, costs and charges of the Trustee, including the fees and disbursements of counsel for the Trustee, and (F) all other costs and expenses incident to the performance of its obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Purchasers shall pay all of their own costs and expenses, including the fees of their counsel and any advertising expenses incurred in connection with any offers they may make. If the sale of the Notes provided for herein is not consummated by reason of acts of the Company or changes in circumstances when it is so delivered, be misleadingof the Company pursuant to Section 8 hereof which prevent this Agreement from becoming effective, or so that by reason of any failure, refusal or inability on the Final Prospectus will comply part of the Company to perform any agreement on its part to be performed or because any other condition of the Purchasers’ obligations hereunder is not fulfilled or if the Purchasers shall decline to purchase the Notes for any reason permitted under this Agreement (other than by reason of a default by any of the Purchasers pursuant to Section 7 or if the Purchasers terminate this Agreement under clause (iv), (v) or (vi) of this Agreement), the Company shall reimburse the several Purchasers for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Purchasers in connection with applicable lawany investigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder.
(e) The Company will cooperate with During the Underwriters in endeavoring to qualify the Certificates for sale under the laws period of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, one year from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters Purchasers, copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, stockholders and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and or financial statements furnished to or filed by or on behalf of the Trust or the Company with the Commission and the Company shall furnish to the Purchasers copies of all reports and other communications furnished to holders of Notes.
(f) Until termination of the offering of the Notes, the Company shall timely file all documents and amendments to previously filed documents required to be filed by it pursuant to the Securities Exchange Act of 1934Section 12, as amended13, and (ii14 or 15(d) such additional information concerning the business and financial condition of the Exchange Act.
(g) If at any time during the two-year period following the later of the date of original issue of the Notes and the date of issue with respect to additional Notes, if any, the Company as is not subject to the Underwriter may information requirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish at its expense, for the benefit of holders from time to time reasonably of Notes, upon request.
, to holders of Notes and prospective purchasers of Notes information (kthe “Additional Issuer Information”) On or before satisfying the Closing Date, requirements of subsection (d)(4) of Rule 144A under the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating Securities Act in order to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent permit compliance with the Trustee's ownership Rule 144A in connection with resales of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementNotes.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company hereby covenants and agrees with the several Underwriters Agent that:
(a) CPS During the period beginning on the date hereof and ending on the date, as determined in the reasonable discretion of the Agent, that a prospectus is no longer required by law to be delivered in connection with the offering or sales of the Shares by the Agent or any dealer (whether physically or through compliance with Rule 153 or 172 of the 1933 Act Regulations, or in lieu thereof, a notice referred to in Rule 173(a) of the 1933 Act Regulations) (the “Prospectus Delivery Period”):
(i) the Company will use its best efforts notify the Agent promptly in writing of the time when any subsequent amendment to cause the Registration Statement, if not Statement has become effective at the Execution Time, and or any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, Registration Statement or any subsequent supplement to the Prospectus has been filed;
(ii) the Company will prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior any material required to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been be filed with the Commission pursuant to Rule 424(b); (iii433(d) whenof the 1933 Act Regulations and any amendments or supplements to the Registration Statement or the Prospectus that, prior to termination in the reasonable judgment of the Company, may be necessary or advisable in connection with the offering of the CertificatesShares by the Agent;
(iii) the Company will comply with Rule 430B; provided, however, that the Company will not file any amendment to the Registration Statement shall have or supplement to the Prospectus with respect to the Shares unless a copy thereof has been submitted to the Agent a reasonable period of time before filing with the Commission or if the Agent reasonably objects to such filing in writing, in each case excluding an amendment by incorporated report filed pursuant to Section 13 or become effective; 15(d) of the 1934 Act;
(iv) the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act and will advise the Agent of any such filing;
(v) the Company will furnish to the Agent at the time of filing thereof, a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or the Prospectus; and
(vi) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the 1933 Act Regulations or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the 1934 Act, within the prescribed time period; in connection with a Terms Agreement, the Company will prepare and file with the Commission, a pricing supplement with respect to the offer and sale of Shares covered by such Terms Agreement. The Company will effect all 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 it 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, it will promptly file such prospectus.
(b) The Company shall pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
(c) To the extent the Company requests that the Agent effect sales of Shares pursuant to this Agreement, the Company will advise the Agent (through notice provided to O’Melveny & ▇▇▇▇▇ LLP, or other counsel reasonably satisfactory to the Agent) of the receipt of any comments of or request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus Prospectus, including the documents incorporated by reference therein, or for any other additional information; (v) or supplemental information with respect thereto or of notice of institution of proceedings for the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement by the Commission or the institution of any proceeding for that purpose; and (viexamination pursuant to Section 8(e) of the receipt by CPS 1933 Act concerning the Registration Statement or of any notification with respect to order or notice preventing or suspending the suspension use of the qualification Registration Statement, any preliminary prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the Certificates for sale in any jurisdiction threatening or the initiation of any proceeding proceedings for any of such purposepurposes, which comments, requests, notices, proceedings have been received, threatened or initiated since the last time the Company requested that the Agent effect sales of Shares pursuant to this Agreement. CPS will The Company shall use its best efforts to prevent the issuance of any such stop order or the notice of prevention or suspension of such use. If the Commission shall enter any such qualification andstop order or issue any such notice at any time, if issued or suspended, the Company will use its best efforts to obtain as soon as the lifting or reversal of such order or notice at the earliest possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commissionmoment, CPS or will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective file an amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of new registration statement in a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver form satisfactory to the Underwriters at Agent and use its best efforts to have such amendment or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, new registration statement become effective as the Underwriters may from time to time reasonably requestsoon as practicable.
(d) The Company willwill make available to the Agent and from time to time furnish to the Agent, at the Company’s expense, copies of the Prospectus (or the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and will cause at such locations as the Trust to, comply with Agent may reasonably request for the purposes contemplated by the 1933 Act.
(e) The Company will promptly notify the Agent to suspend the offering of Shares (i) when the Company is in possession of material non-public information and (ii) upon the happening of any event known to the Company during the Prospectus Delivery Period or otherwise prior to the final Settlement Date which, in the reasonable judgment of the Company, would require the making of any change in the Registration Statement or in the Prospectus then being used, or in the information incorporated by reference therein, so that the Registration Statement and the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. During such time period, the 1933 Act RegulationsCompany will prepare and furnish, at the 1934 Act Company’s expense, to the Agent promptly such amendments or supplements to such Registration Statement and Prospectus as may be necessary to reflect any such change and will furnish the 1934 Act Regulations, so as to permit Agent with a copy of such proposed amendment or supplement before filing any such amendment or supplement with the completion of the distribution of the Certificates as contemplated in this Agreement and the Final ProspectusCommission. If during the period in which a prospectus is required by law to be delivered by at any time following issuance of an Underwriter Issuer Free Writing Prospectus there occurred or dealer in connection with the sale of any Certificates, any occurs an event shall occur or development as a result of which, which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the judgment Registration Statement (or any other registration statement relating to the Shares) or the Prospectus or any preliminary prospectus or included or would include an untrue statement of the Company a material fact or in the reasonable opinion of the Underwriters, it becomes omitted or would omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing prevailing at the time the Final Prospectus is delivered to a purchaserthat subsequent time, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters Agent and will promptly either (i) prepare and fileamend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or cause to be prepared and filedcorrect such conflict, with the Commission an appropriate amendment to the Registration Statement untrue statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawomission.
(ef) The Company will furnish such information as may be required and otherwise will cooperate with in qualifying the Underwriters in endeavoring to qualify the Certificates Shares for offering and sale under the securities or blue sky laws of such jurisdictions as the Underwriters Agent may designate and will to maintain such qualifications in effect so long as required for the distribution of the Certificates, except Shares; provided that the Company will shall not be obligated required to qualify as a foreign corporation or to consent to the Certificates service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares). The Company will promptly advise the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actinitiation or threatening of any proceeding for such purpose.
(g) Until Prior to the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstfinal Settlement Date, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished furnish to the Trustee pursuant Agent (i) copies of any reports or other communications which the Company shall send directly to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Pooling Commission on Forms 10-K, 10-Q and Servicing Agreement8-K, or such other similar form as may be designated by the Commission, (iii) copies of any financial statements or reports filed with any national securities exchange on which any class of securities of the Company is listed and (iv) such other information as the Agent may reasonably request regarding the Company, in each case as soon as such statements and reports are furnished reports, communications, documents or information becomes available. Where in any part of this Agreement there is an obligation on the part of the Company to deliver a document to the TrusteeAgent or its counsel, or to provide notification of the filing of any such document with the Commission, such obligation shall be deemed satisfied if and when such document shall have been filed on the Commission’s ▇▇▇▇▇ system.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the 1933 Act Regulations but no in any event not later than sixteen 15 months after the Effective Dateend of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12 month period beginning after the date upon which a prospectus supplement is filed pursuant to Rule 424(b) of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying 1933 Act Regulations that shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Regulations.
(i) Whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, the Company will pay all of its costs, expenses, fees and taxes incident to the performance of its obligations hereunder, including, but not limited to, such costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, each prospectus supplement filed by the Company in connection with the offering and sale of Shares by the Agent under this Agreement and any amendments or supplements thereto and the printing and furnishing of copies of each thereof to the Agent (including Rule 158 promulgated thereundercosts of mailing and shipment), (ii) the producing, word processing and/or printing of this Agreement, the Master Confirmation, any power of attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Agent (including costs of mailing and shipment), (iii) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Agent and the Forward Purchaser) and the preparation, printing and furnishing of copies of any blue sky surveys to the Agent, (iv) the listing of the Settlement Shares on the NYSE, (v) any filing for review of the public offering of the Shares by FINRA, (vi) the fees and disbursements of the Company’s counsel and accountants, (vii) the performance of the Company’s other obligations hereunder, (viii) the costs and expenses (including without limitation any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Shares made by the Agent caused by a breach of the representation contained in the first paragraph of Section 1(e) and (ix) the registration, issue, sale and delivery of the Settlement Shares. The Agent and the Forward Purchaser will pay their own out-of-pocket costs and expenses incurred in connection with entering into this Agreement and the transactions contemplated by this Agreement, including, without limitation, travel, reproduction, printing and similar expenses as well as the fees and disbursements of their legal counsel.
(j) So long as any The Company will use the Net Proceeds from the sale of the Certificates are outstanding, Shares in the Company will furnish to manner set forth in the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestProspectus.
(k) On During the period beginning on the date on which instructions to sell Shares hereunder are delivered by the Company to the Agent and ending on the Settlement Date or before the Closing DateDirect Settlement Date with respect to such sales, the Company and CPS and ▇▇▇▇▇ shall cause will not sell, offer or agree to sell, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock or securities convertible into or exchangeable, exercisable or redeemable for capital stock or warrants or other rights to purchase capital stock, except (i) for the respective computer records registration of the Company Shares and CPS the sales of Shares through the Agent or the Additional Agents pursuant to this Agreement and Samco the Additional Equity Distribution Agreements, respectively, (ii) for shares of Common Stock issued pursuant to outstanding equity awards or the grant of equity awards under (x) existing employee benefit agreements or equity incentive plans or (y) employee benefit agreements or equity incentive plans described in the Prospectus or the Registration Statement, (iii) any shares of Common Stock issued upon conversion, repurchase or exchange of the Company’s outstanding convertible securities, (iv) shares of Common Stock or other securities issued as consideration for investments in or acquisitions of entities involved in investment advisory or investment management activities or other financial services related business (including any resale of shares issued in such a transaction) or (v) any filing under the 1933 Act relating to any shares of Common Stock on Form S-8 or any issuances of Common Stock thereunder, without (a) giving the Receivables to be marked to show Agent prior written notice, as promptly as reasonably practicable, specifying the Trustee's absolute ownership nature of the Receivables, proposed sale and from the date of such proposed sale and after (b) the Closing Date neither Agent suspending activity under this program for such period of time as requested by the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than or as expressly permitted reasonably deemed appropriate by the Pooling and Servicing AgreementAgent in light of the proposed sale.
(l) To At any time during the extentterm of this Agreement, if anythe Company will advise the Agent immediately after it shall have received notice or obtain knowledge thereof, that of (x) any information or fact that, in the ratings provided with respect opinion of counsel to the Certificates by either Company, would alter or affect, in any material respect, any opinion, certificate, letter or other document provided to the Agent pursuant to Section 4 of this Agreement or any of the Rating Agencies is conditional upon the furnishing representations or warranties made pursuant to Section 1 of documents this Agreement or the taking of (y) any other actions non-compliance or imminent non-compliance by the Company with any of its covenants or CPS, CPS shall, or shall cause the Company to, furnish such documents and take obligations hereunder in any such other actionsmaterial respect.
(m) On Except as provided in the Closing last sentence hereof, upon commencement of the offering of the Shares under this Agreement, (i) at each time Shares are delivered to the Agent as principal on a Direct Settlement Date, (ii) on every Monday during the term of this Agreement following a week during which no certificate was furnished pursuant to this Section 3(m) (except for any Monday during any period starting on the first day of each fiscal quarter of the Company and CPS ending on the third business day following the next Company Earnings Report Date, unless sales of Shares took place during such period pursuant to Section 2(j)(A)) and (iii) promptly after each Registration Statement Amendment Date, each Company Periodic Report Date, and each date on which a current report on Form 8-K shall cause be furnished by the Certificate Insurer to issue the Policy to the Trustee for the benefit Company under Item 2.02 of the holders such form in respect of the Certificates in form and substance satisfactory to each Underwriter.a pub
Appears in 1 contract
Sources: Equity Distribution Agreement (Affiliated Managers Group, Inc.)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS the Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS the Company has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS The Company will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; purpose and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS the Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Consumer Portfolio Services Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatagrees:
(a) CPS will use its best efforts to cause During any Marketing Period (as defined below), the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS the Company has furnished to each of the Underwriters Agents a copy for its their review prior to filing and will not file any such proposed amendment or supplement to which any the Agents reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Underwriters reasonably objects Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, and which is not in compliance any supplement thereto to be filed with the 1933 Act RegulationsCommission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Agents of such timely filing. CPS The Company will promptly advise the Underwriters Agents (i1) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b); ) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii2) when, prior to termination of the offering of the CertificatesSecurities, any amendment to the Registration Statement shall have been filed or become effective; , (iv3) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any other additional information; , (v4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; purpose and (vi5) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible the withdrawal thereof.
(b) Prior If, at any time when a prospectus relating to the filing thereof Securities is required to be delivered under the Act (a "Marketing Period"), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Agents of such event; (2) prepare and file with the Commission, CPS subject to the second sentence of paragraph (a) of this Section 3, an amendment or supplement which will submit correct such statement or omission or effect such compliance; and (3) supply any supplemented Prospectus to each you in such quantities as you may reasonably request. If during any Marketing Period, (i) any Agent shall own any Securities which it has purchased from the Company as principal with the intention of reselling them and the Agents have held such Securities for less than 90 days or for the period such Securities are required to be held under the terms of the UnderwritersPurchase Agreement related to such Securities or (ii) the Company has accepted an offer to purchase Securities but the related settlement has not occurred, for its approval after reasonable notice thereof, such approval not the Company shall promptly prepare and timely file with the Commission any amendment or supplement to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusany Prospectus that may, in the judgment of the Company and the Agents, be required by the Act.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Agents an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will deliver tofurnish to the Agents and to counsel for the Agents, or upon without charge, copies of the order ofRegistration Statement (including exhibits thereto) and to each other Agent a copy of the Registration Statement (without exhibits thereto) and, the Underwriters, from time to timeduring any Marketing Period, as many copies of the Prospectus and any Preliminary Final Prospectus supplement thereto as the Underwriters Agents may reasonably request. The Company will deliver to, pay the expenses of printing or upon the order of, the Underwriters during the period when delivery other production of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver all documents relating to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawoffering.
(e) The Company will cooperate with arrange, if necessary, for the Underwriters in endeavoring to qualify qualification of the Certificates Securities for sale under the laws of such jurisdictions as the Underwriters Agents may designate and designate, will maintain such qualifications in effect so long as required for the distribution of the CertificatesSecurities and will pay any fee of the National Association of Securities Dealers, except Inc. in connection with its review of the offering; provided, that in no event shall the Company will not be obligated to qualify the Certificates do business in any jurisdiction in which such qualification where it is not now so qualified or to take any action that would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent subject it to service of process in suits, other than those arising out of the offering or subject itself to taxation sale of the Securities in any such jurisdiction to which where it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for now so long a period as the Underwriters may reasonably request for distribution of the Certificatessubject.
(f) The Company shall will not investtake, directly or otherwise use indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the proceeds received by Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company from its to facilitate the sale or resale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActSecurities.
(g) Until If required pursuant to the retirement terms of any Purchase Agreement, between the Certificates, or until date of a Purchase Agreement and the date identified in such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstPurchase Agreement, the Company will deliver not offer or sell, or enter into any agreement to each Underwriter sell, any of its debt securities that are substantially similar to the annual statements Securities. This paragraph (g) does not apply to borrowings under the Company's credit agreements and lines of compliance credit and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteeprivate placement of securities.
(h) The Company or CPS shallTo prepare, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents any Securities to be sold through or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for Agents pursuant to this Agreement, a Pricing Supplement with respect to such Securities and to file such Pricing Supplement pursuant to Rule 424(b) under the benefit of Act with the holders of the Certificates in form and substance satisfactory to each UnderwriterCommission.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters Underwriters, and as applicable, the Selling Shareholder, that:
(a) CPS will use its best efforts to cause the The Registration StatementStatement and all amendments thereto, if not effective at the Execution Timeany, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS have been declared effective. The Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when Representatives and the Registration Statement, if not effective at the Execution Time, Selling Shareholder and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) their respective counsel promptly after it receives notice of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS , or of any notification with respect to of the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding proceedings for such that purpose. CPS , and will use its best efforts also advise the Representatives and the Selling Shareholder and their respective counsel promptly after it receives comments from the Commission or any request from the Commission to prevent amend or supplement the issuance of Registration Statement (including the Rule 462 Registration Statement, if any), any such stop order Preliminary Prospectus or the suspension of Prospectus, or for additional information, and the Company will not file any such qualification and, if issued amendment or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment supplement to the Registration Statement (including the Rule 462 Registration Statement, if any) (either before or after it becomes effective), to any Preliminary Prospectus or to the Prospectus (including a prospectus filed pursuant to Rule 462(b) Registration Statement proposed to be filed 424(b)), or a copy of file any document proposed to be filed under the 1934 Exchange Act before the termination of the public offering of the Certificates Shares by the Underwriters if such document would be deemed to be incorporated by reference into in the Registration Statement Statement, if the Representatives have not been furnished with a copy prior to such filing (with a reasonable opportunity to review such amendment or Final Prospectussupplement) or if the Representatives reasonably object to such filing in writing.
(b) The Company will file the Prospectus Supplement with the Commission in the manner and within the time period required by Rule 424(b) of the Act.
(c) The Company will deliver toIf, or upon the order of, the Underwriters, from at any time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver prospectus relating to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur occurs as a result of whichwhich the Prospectus would include an untrue statement of a material fact, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes would omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law the Act or to file under the 1934 Exchange Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Exchange Act, the Company promptly will promptly notify each of advise the Representatives and counsel for the Underwriters thereof and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission Commission, at its expense, an appropriate amendment to the Registration Statement or supplement file such document which will correct such statement or omission or an amendment which will effect such compliance, and, if any Underwriter is required to deliver a prospectus after the effective date of the Registration Statement, the Company, upon request of the Representatives, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act. The Company consents to the Final Prospectus use, in accordance with the provisions of the Act and with the Blue Sky Laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, of each Preliminary Prospectus.
(d) Neither the Company nor any Subsidiary will, prior to the Second Closing Date, if any, incur any liability or (ii) prepare and fileobligation, direct or contingent, or cause enter into any material transaction, other than in the ordinary course of business, or enter into any transaction with an “affiliate,” as defined in Rule 405 of the Act, which is required to be prepared and filed, with disclosed in the Commission (at the expense Prospectus pursuant to Item 404 of the Company) an appropriate filing Regulation S-K under the 1934 Act which shall be incorporated by reference Act, except as described in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawProspectus.
(e) The Neither the Company will cooperate nor any Subsidiary will, prior to the Second Closing Date, if any, acquire any of the Common Stock, except in connection with the Underwriters in endeavoring exercise, vesting, forfeiture or termination of, or lapse of restrictions with respect to, awards granted pursuant to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution terms of the CertificatesCompany’s equity incentive plans and the withholding or surrender of Common Stock to cover applicable taxes associated therewith, nor will the Company declare or pay any dividend or make any other distribution upon its Common Stock payable to shareholders of record on a date prior to such earlier date, except that as described in the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesProspectus.
(f) The Company shall not investwill make generally available to its security holders and the Representatives an earnings statement as soon as practicable, or otherwise use but in no event later than 60 days after the proceeds received by end of its fiscal quarter in which the Company from its sale first anniversary of the Certificates in such effective date of the Registration Statement occurs, covering a manner as would require period of 12 consecutive calendar months beginning after the Companyeffective date of the Registration Statement, CPS or which will satisfy the Trust to register as an investment company under provisions of the 1940 Actlast paragraph of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(g) Until the retirement of the Certificates, During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstdealer, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished furnish to the Trustee pursuant Representatives, at the expense of the Company, copies of the Registration Statement, the Prospectus, any Preliminary Prospectus and all amendments and supplements to any such documents, including any document filed under the Pooling Exchange Act and Servicing Agreementdeemed to be incorporated by reference in the Registration Statement, in each case as soon as available and in such statements and reports are furnished to quantities as the TrusteeRepresentatives may reasonably request.
(h) The Company or CPS shall, will apply the net proceeds from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall Shares to be reasonably satisfactory sold by it hereunder for the purposes set forth in form the Prospectus and substance will timely comply with Rule 463 under the Act with respect to each Underwriterthe disclosure of the use of such net proceeds.
(i) The Company will cause cooperate with the Trust Representatives and counsel for the Underwriters in qualifying or registering the Shares for sale under the Blue Sky Laws of such jurisdictions as the Representatives designate, and will continue such qualifications or registrations in effect so long as reasonably requested by the Representatives to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after effect the Effective Date, an earnings statement distribution of the Trust covering Shares. The Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction where it is not presently qualified. In each jurisdiction where any of the Shares shall have been qualified as provided above, the Company will file such reports and statements as may be required to continue such qualification for a period of at least twelve consecutive months beginning after not less than one year from the date of this Agreement. The Company shall promptly prepare and file with the Commission, from time to time, such Effective Date reports as may be required to be filed by the Act and satisfying the provisions of Section 11(a) Exchange Act, and the Company shall comply in all respects with the undertakings given by the Company in connection with the qualification or registration of the Act (including Rule 158 promulgated thereunder)Shares for offering and sale under the Blue Sky Laws.
(j) So long as any During the period of three years from the date of the Certificates are outstandingProspectus, the Company will furnish to each of the Representatives and to each of the other Underwriters copies of all reports who may so request, each report, statement or other communications (financial document of the Company or otherwise) furnished its Board of Directors mailed to its shareholders or made available to Certificateholdersfiled with the Commission, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional other information concerning the business and financial condition of the Company as the Underwriter Representatives may from time to time reasonably request.
(k) On The Company shall take all necessary or before appropriate action within its power to maintain the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records authorization for trading of the Company and CPS and Samco relating Common Stock on the New York Stock Exchange, or take such action to authorize the Receivables to be marked to show Common Stock for listing on the Trustee's absolute ownership Nasdaq National Market or the American Stock Exchange, for a period of at least 36 months after the date of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementProspectus.
(l) To Except for the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions issuance and sale by the Company of Common Stock upon exercise of currently outstanding stock options, the sale of the Shares to be sold by the Company pursuant to this Agreement, the issuance of Common Stock pursuant to the terms of the Company’s 2.75% Convertible Senior Subordinated Notes due 2024, the issuance of Common Stock under presently existing defined contribution or CPSbenefit plans, CPS shalland the grant of employee stock options, restricted stock or other equity awards pursuant to the Company’s presently existing equity incentive plans, the Company shall not, for a period of 90 days after the date of the Prospectus, without the prior written consent of Baird, directly or indirectly, offer, sell or otherwise dispose of, contract to sell or otherwise dispose of, or shall cause or in any way permit to be sold or otherwise disposed of, any: (i) shares of Common Stock; (ii) rights to purchase shares of Common Stock; or (iii) securities that are convertible or exchangeable into shares of Common Stock. Notwithstanding the foregoing, if (x) during the last 17 days of the 90 days after the date of the Prospectus Supplement, the Company toissues an earnings release or material news or a material event relating to the Company occurs, furnish or (y) prior to the expiration of such documents and take any 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such other actions90-day period, the restrictions imposed in this clause 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.
(m) On The Company will maintain a transfer agent and, if required by law or the Closing Daterules of the New York Stock Exchange or any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(n) The Company, during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(o) [Intentionally Omitted]
(p) If the sale to the Underwriters of the Shares is not consummated for any reason other than termination of this Agreement pursuant to Section 13, 15(a) or 15(d) hereof, without limiting any other rights the Underwriters may have, the Company agrees to reimburse the Underwriters upon demand for all out-of-pocket expenses (including, without limitation, reasonable fees and CPS expenses of counsel for the Underwriters), that shall have been incurred by the Underwriters in connection with the proposed purchase and sale of the Shares, and the provisions of Sections 9 and 12 hereof shall at all times be effective and apply.
(q) The Company will use its reasonable best efforts to comply or cause to be complied with the Certificate Insurer to issue the Policy conditions to the Trustee for the benefit obligations of the holders Underwriters in Section 10 hereof.
(r) Neither the Company nor any of the Certificates in form and substance satisfactory Subsidiaries, nor any of their respective directors, officers, affiliates or controlling persons has taken or will take, directly or indirectly, any action designed to each Underwritercause or result in, or which constituted, or which could cause or result in, stabilization or manipulation, under the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during with copies o▇ ▇▇▇▇ ▇mendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters endeavor, in endeavoring cooperation w▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying Company (in form complying with the provisions of Section 11(a) Rule 158 of the Act (including Rule 158 promulgated thereunder).
(jrules and regulations under the 1933 Act) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and covering a twelve-month period beginning not later than ▇▇▇ ▇▇▇▇▇ shall cause the respective computer records ▇▇▇ of the Company and CPS and Samco relating to Company's fiscal quarter next following the Receivables to be marked to show the Trustee's absolute ownership "effective date" (as defined in Rule 158) of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementRegistration Statement.
(le) To As soon as practicable after the extentdate of this Agreement, if anyand in any event within the time prescribed by Rule 424 under the 1933 Act, that to file the ratings provided Final Supplemented Prospectus with respect the Commission and to advise the Certificates by either Representative of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents filing and take any to confirm such other actionsadvice in writing.
(mf) On During a period of 15 days from the Closing Datedate of this Agreement, the Company and CPS shall cause will not, without the Certificate Insurer Representative's prior written consent, directly or indirectly, sell, offer to issue sell, grant any option for the Policy sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Trustee Senior Notes (except for the benefit Senior Notes issued pursuant to this Agreement). The Representative agrees that commercial paper or other debt securities with scheduled maturities of less than one year are not subject to this Section 3(f).
(g) The Company will use its best efforts to effect the listing of the holders of Senior Notes on the Certificates in form and substance satisfactory to each UnderwriterNew York Stock Exchange.
Appears in 1 contract
Covenants of the Company. THE MHC AND THE BANK. The Company covenants Company, the MHC and agrees the Bank covenant with the several Underwriters thatAgent as follows:
(a) CPS The Company, the MHC and the Bank will use its best efforts prepare and file such amendments or supplements to cause the Registration Statement, if not effective at the Execution TimeProspectus, the Charter Conversion Application, the Holding Company Application, the MHC Application and any amendment theretothe Proxy Statement as may hereafter be required by the Securities Act Regulations or the OTS Regulations or as may hereafter be requested by the Agent. Following completion of the Subscription and Community Offering, to become effective as soon as reasonably practicable thereafter orin the event of a Syndicated Community Offering, if the procedure in Rule 430A is followedCompany, the MHC and the Bank will (i) promptly prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed relating to the results of the Subscription and Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or become effective; (ivii) if no such post-effective amendment is required, will file with the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription and Community Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, in either case in a form acceptable to the Agent. The Company, the MHC and the Bank will notify the Agent immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment of the Registration Statement, the filing of any supplement to the Prospectus and the filing of any amendment to the Plan, (ii) of the receipt of any comments from the OTS or the Commission with respect to the transactions contemplated by this Agreement or the Plans, (iii) of any request by the Commission or the OTS for any amendment of to the Registration Statement or the Plans or any amendment or supplement to the Final Prospectus or for any other additional information; , (iv) of the issuance by the OTS of any order suspending the Offerings or the use of the Prospectus or the initiation of any proceedings for that purpose, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution initiation of any proceeding proceedings for that purpose; , and (vi) of the receipt by CPS of any notification notice with respect to the suspension of the any qualification of the Certificates Securities for offering or sale in any jurisdiction or jurisdiction. The Company, the initiation of any proceeding for such purpose. CPS MHC and the Bank will use its best efforts take all necessary action to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior The Company, the MHC and the Bank will give the Agent notice of its intention to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld file or delayed, a copy of prepare any post-- effective amendment to the Registration Statement, any Rule 462(b) Plans or Registration Statement proposed (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use in connection with the Syndicated Community Offering of the Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed or a copy pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Agent with copies of any document such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to be filed under which the 1934 Act before Agent or counsel for the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusAgent may object.
(c) The Company will deliver to, or upon the order ofCompany, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as MHC and the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company Bank will deliver to the Underwriters at or before the Closing Date, two Agent as many signed copies and as many conformed copies of the Reorganization Applications, the Charter Conversion Application, and the Registration Statement as originally filed and all amendments of each amendment thereto (including all exhibits filed therewiththerewith or incorporated by reference therein) as the Agent may reasonably request, and will deliver from time to the Underwriters time such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, Prospectus as the Underwriters Agent may from time to time reasonably request.
(d) The Company willDuring the period when the Prospectus is required to be delivered, the Company, the MHC and the Bank will comply, at their own expense, with all requirements imposed upon them by the OTS, by the OTS Regulations, as from time to time in force, and will cause by the Trust toNasdaq SmallCap Market, comply with the 1933 Securities Act, the 1933 Securities Act Regulations, the 1934 Act Exchange Act, and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the completion continuance of sales or dealing in shares of the distribution of Securities during such period in accordance with the Certificates as contemplated in this Agreement provisions hereof and the Final Prospectus. .
(e) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event or circumstance shall occur as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersAgent, it becomes necessary to amend or supplement the Final Registration Statement or Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company, the MHC and the Bank will forthwith amend or supplement the Registration Statement or Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented, the Registration Statement or Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus it is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance MHC and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company Bank will furnish to the Underwriters Agent a reasonable number of copies of all reports such amendment or other communications (financial or otherwise) furnished or made available supplement. For the purpose of this subsection, the Company, the MHC and the Bank will each furnish such information with respect to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company itself as the Underwriter Agent may from time to time reasonably request.
(kf) On or before the Closing DateThe Company, the MHC and the Bank will take all necessary action, in cooperation with the Agent, to qualify the Securities for offering and sale under the applicable securities laws of such states of the United States and other jurisdictions as the OTS Regulations may require and as the Agent and the Company have agreed; provided, however, that none of the Company, the MHC or the Bank shall be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company, the MHC and CPS the Bank will file such statements and reports as may be required by the 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 Registration Statement.
(g) The Company authorizes Sandler ▇’▇▇▇▇▇ shall cause and any Selected Dealer to act as agent of the respective computer records Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or “blue sky” laws of the various jurisdictions in which the Offerings will be made (the “Blue Sky Survey”).
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement covering a twelve month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date of the Registration Statement (as defined in Rule 158 of the Securities Act Regulations) that will satisfy the provisions of Section 11(a) of the Securities Act.
(i) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and consolidated statements of income, stockholders’ equity and cash flows, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), the Company will make available to its stockholders (whether through a Commission filing or otherwise) consolidated summary financial information of the Company and CPS the Bank for such quarter in reasonable detail. In addition, such annual report and Samco relating quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the Receivables to be marked to show the Trustee's absolute ownership time of the Receivablesfurnishing thereof to stockholders of the Company.
(j) During the period ending on the fifth anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from and after the Closing Date neither time to time, such other information concerning the Company nor CPS nor Samco shall take any action inconsistent as the Agent may reasonably request.
(k) The Company, the MHC and the Bank will comply, at their own expense, with the Trustee's ownership of such Receivables, other than as expressly permitted all requirements imposed by the Pooling Commission, the OTS and Servicing Agreementthe Nasdaq SmallCap Market, or pursuant to the applicable Securities Act Regulations, OTS Regulations and Nasdaq SmallCap Market Regulations, as from time to time in force.
(l) To The Company will promptly inform the extent, if any, that the ratings provided Agent upon its receipt of service with respect to any material litigation or administrative action instituted with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsOfferings.
(m) On Each of the Company and the Bank will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(n) The Company will report the use of proceeds from the Offerings on its first periodic report filed pursuant to Sections 13(a) and 15(d) of the Exchange Act and on any subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act Regulations.
(o) The Company will maintain the effectiveness of the Exchange Act Registration Statement for not less than three years and will comply in all material respects with its obligations under the Exchange Act. The Company will use its best efforts to effect and maintain the listing of the Common Stock on the Nasdaq SmallCap Market and, once listed on the Nasdaq SmallCap Market, the Company will comply with all applicable corporate governance and other standards required by the Nasdaq SmallCap Market. The Company will file with the Nasdaq SmallCap Market all documents and notices required by the Nasdaq SmallCap Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq SmallCap Market.
(p) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with Rule 2790 ofthe National Association of Securities Dealers, Inc. and all related rules.
(q) Other than in connection with any employee benefit plan or arrangement described in the Prospectus, the Company will not, without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities and the Foundation Shares for a period of 180 days following the Closing Time.
(r) During the period beginning on the date hereof and ending on the earlier of the sixth anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant to Sections 6 or 7, respectively, none of the Company, the MHC or the Bank shall, without the prior written consent of the Agent, take or permit to be taken any action that could result in the Bank Common Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance.
(s) The Company, the MHC and the Bank will comply with the conditions imposed by or agreed to with the OTS in connection with its approval of the Regulatory Applications including the Plans.
(t) During the period ending on the third anniversary of the Closing Time, the Bank will comply with all applicable laws and regulations necessary for the Bank to continue to be a “qualified thrift lender” within the meaning of 12 U.S.C. Section 1467a(m).
(u) The Company shall not deliver the Securities until the Company, the MHC and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived by the Agent.
(v) The Company, the MHC and the Bank will furnish to Sandler ▇’▇▇▇▇▇ as early as practicable prior to the Closing Date, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company which have been read by McGladrey & ▇▇▇▇▇▇, LLP, as stated in their letters to be furnished pursuant to subsections (f) and CPS shall cause (g) of Section 5 hereof.
(w) Each of the Certificate Insurer to issue Company, the Policy MHC and the Bank will conduct its business in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders, including all decisions, directives and orders of the Commission, the Nasdaq SmallCap Market and the OTS.
(x) The Bank will not amend the Plans in any manner that would affect the sale of the Securities or the terms of this Agreement without the consent of the Agent.
(y) The Company, the MHC and the Bank will not, prior to the Trustee Closing Time, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business consistent with past practice, except as contemplated by the Prospectus.
(z) The Company, the MHC and the Bank will use all reasonable efforts to comply with, or cause to be complied with, the conditions precedent to the several obligations of the Agent specified in Section 5 hereof.
(aa) The Company, the MHC and the Bank will provide the Agent with any information necessary to carry out the allocation of the Securities in the event of an oversubscription, and such information will be accurate and reliable in all material respects.
(bb) The Company, the MHC and the Bank will notify the Agent when funds have been received for the benefit minimum number of Securities set forth in the Prospectus.
(cc) At the Closing Time, (i) the Company, the MHC and the Bank will have completed the conditions precedent to the Offerings and the establishment of the holders Foundation in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all material terms, conditions, requirements and provisions precedent to the Charter Conversion, Reorganization and the Offerings imposed upon the Company, the MHC or the Bank by the Commission, the OTS or any other regulatory authority or Blue Sky authority, and will comply with those which the regulatory authority permits to be completed after the Reorganization and the Offerings; and (ii) the Reorganization and the Offerings and the establishment of the Certificates Foundation will have been effected in form the manner described in the Prospectus and substance satisfactory in accordance with the Plan, the OTS Regulations and all other applicable material laws, regulations, decisions and orders, including in compliance with all terms, conditions, requirements and provisions precedent to each Underwriterthe Reorganization and the Offerings imposed upon the Company, the MHC and the Bank by the Commission, the OTS, or any other regulatory or Blue Sky authority.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A; and (ii) not file with the Commission any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b(A) Registration Statement unless CPS has furnished to each of which the Underwriters shall not previously have been advised and furnished with a copy for its review a reasonable period of time prior to the proposed filing and will not file any such proposed amendment or supplement as to which any of filing the Underwriters reasonably objects and shall not have given their consent or (B) which is not in compliance with the 1933 Securities Act Regulations. CPS and the Rules.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Underwriters promptly (i) when of any request made by the Commission for amendment of the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or the institution or threat of any action, investigation or proceeding for that purpose; and or (viiii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for such that purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting or withdrawal thereof as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectuspossible.
(c) The Company will (i) on or before the Closing Date, deliver toto the Underwriters a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, or promptly upon the order offiling thereof, a signed copy of each post-effective amendment, if any to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriters); (ii) as promptly as possible deliver to the Underwriters, from time to timeat such office as the Underwriters may designate, as many copies of any Preliminary Final the Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as ; and (iii) thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection a dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Prospectus and of any amended prospectus, filed by the Company with the sale of Commission, as the Underwriters may reasonably request for the purposes contemplated by the Securities Act.
(d) If, at any Certificatestime during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. If, orafter the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of the offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with opinion either of counsel for the 1933 Act Company or of counsel for the 1934 ActUnderwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will promptly notify each of forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and will promptly either (i) prepare and fileall dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, as from time to time amended or cause to be prepared and filedsupplemented, in connection with the Commission an appropriate sale of the Shares in accordance with the applicable provisions of the Securities Act and Rules for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information and prior consent, a copy of any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate with cooperate, when and as requested by you, in the Underwriters in endeavoring to qualify qualification of the Certificates Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or blue sky laws; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or file any general consent to service of process in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, will from time to time, time prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until The Company agrees to pay the retirement costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the CertificatesRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or until supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such time copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including the transfer agent fees and any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act and the listing of the Shares on the NASDAQ National Market; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions (including filing fees and the reasonable fees and expenses of counsel for the Underwriters shall cease relating to maintain a secondary market such registration and qualification); (vii) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Certificates, whichever occurs first, Shares; (ix) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other reasonable costs and expenses incident to the performance by the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteeits obligations hereunder.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as As soon as practicable, but no in any event not later than sixteen months 45 days after the end of the first fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the rules and regulations promulgated under the Securities Act, an earnings statement of that will be in the Trust covering a period of at least twelve consecutive months beginning after such Effective Date detail required by, and satisfying will otherwise comply with, the provisions of Section 11(a) of the Securities Act (including and Rule 158 158(a) of the rules and regulations promulgated thereunder).
(i) During a period of three years after the date hereof, the Company will furnish or make available to the Underwriters electronically or by other reasonably acceptable means, in each case as soon as such information becomes publicly available, copies of all periodic and special reports furnished to the stockholders of the Company including but not limited to (i) copies of the Company's Annual Report and (ii) copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other information, documents or reports filed with the Commission.
(j) So long as any The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Certificates are outstandingCompany, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) For a period of 180 days following the date of the Final Prospectus, the Company will furnish to not, directly or indirectly, without the Underwriters copies prior written consent of all reports or other communications (financial or otherwise) furnished or made available to CertificateholdersRoth Capital Partners, and deliver to the Underwriters during such periodLLC, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust Underwriters, (1) sell, o▇▇▇▇, 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, transfer the economic risk of ownership in, make any short sale, lend, pledge or otherwise issue or dispose of any shares of capital stock of the Company or any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire any shares of capital stock of the Company (or publicly announce its intention to do any of the foregoing), except pursuant to the exercise of stock options outstanding on the date hereof, or granted subsequent to the date hereof, pursuant to a stock option, stock bonus or other stock plan or arrangement or employee benefit plan in existence on the date hereof and as described in the Prospectus, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of capital stock of the Company (or publicly announce its intention to do any of the foregoing), regardless of whether any such transaction described in clause (1) or (2) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise, or (3) file any registration statement (other than a registration statement of form S-8 registering the sale of shares of common stock described in the Prospectus under the heading "Shares Eligible for Future Sale -- Employee Benefit Plans"), except in each of clauses (1), (2) and (3) as required by this Agreement.
(l) The Company will cause the Shares to be duly included for quotation on the NASDAQ National Market prior to the Closing Date.
(m) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(n) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(o) The Company will use its best efforts to timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and substance with the Commission pursuant applicable requirements under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company is familiar with the Investment Company Act of 1940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company was not and will not be an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(q) The Company has caused to be delivered to you a letter in the form provided by Roth Capital Partners, LLC (the "Lock-Up Agreement") from the holders ▇▇ ▇ot less than 95% of the Company's outstanding equity securities measured on an as-converted to Common Stock basis on the date hereof, stating in each case that such holder agrees that he, she, or it will not, without the prior written consent of Roth Capital Partners, LLC, directly or indirectly (and, except as may ▇▇ disclosed in the final Prospectus, will not announce or disclose any intention to), sell, offer to sell, solicit an offer to buy, contract to sell, grant any option or other right to purchase, lend, pledge, transfer, make any short sale, establish an open "put equivalent position" (within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended) or otherwise dispose of or transfer any economic risk of ownership in any shares of Common Stock, and options or warrants or other rights to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock, whether now owned or hereafter acquired (ii) except for securities acquired by such additional information concerning holder on the business and financial condition open market after the date of the final Prospectus), either of record or beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by such holder for a period commencing on the date hereof and ending 180 days after the date of the final Prospectus, in each case subject to the enumerated exceptions set forth therein.
(r) The Company as shall at all times comply in all material respects with all applicable requirements of the Underwriter may Sarbanes-Oxley Act of 2002 in effect from time to time reasonably request.
(k) On or before the Closing Datetime, the Company and CPS and all applic▇▇▇▇ ▇▇▇▇▇ shall cause ▇▇▇ regulations promulgated thereunder or implementing the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreementprovisions thereof.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Lindows Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatUnderwriter as follows:
(a) CPS To the extent requested, to furnish to the Underwriter, without charge, two signed copies of the Registration Statement (including exhibits thereto), and to furnish to the Underwriter in Los Angeles, California, without charge, prior to 10:00 a.m. Eastern Standard Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(g) or 7(h) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments (including prospectus wrappers) thereto or to the Registration Statement as the Underwriter may reasonably request.
(b) To cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to the Underwriter an “electronic Prospectus” to be used by the Underwriter in connection with the Offering of the Shares. As used herein, the term “electronic Prospectus” means a form of Time of Sale Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriter, including, but not limited to, portable document format, or PDF, that may be transmitted electronically by the Underwriter to offerees and purchasers of the Shares; and (ii) it shall disclose the same information as the paper Time of Sale Prospectus, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate. The Company hereby confirms that it has included or will use its best efforts include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Time of Sale Prospectus.
(c) Before amending or supplementing the Registration Statement, if not effective at the Execution Time, and any amendment theretoTime of Sale Prospectus or the Prospectus, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior furnish to the termination Underwriter a copy of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or each such proposed amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) and not to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters Underwriter reasonably objects and which is not in compliance object, to file with the 1933 Commission within the applicable period specified in Rule 424(b) under the Securities Act Regulations. CPS will promptly advise any prospectus including, the Underwriters (i) when the Registration Statement, if not effective at the Execution TimeProspectus required to be filed pursuant to such Rule, and to file any amendment theretoissuer free writing prospectus to the extent required by Rule 433 under the Securities Act.
(d) To furnish to the Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, shall have become effective; used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Underwriter reasonably objects.
(iie) when Not to take any action that would result in an Underwriter or the Final Prospectus, and any supplement thereto, shall have been filed Company being required to file with the Commission pursuant to Rule 424(b); (iii433(d) when, prior to termination under the Securities Act a free writing prospectus prepared by or on behalf of the offering of Underwriter that the Certificates, Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Underwriter promptly (i) when any amendment to the Registration Statement shall have has been filed or become becomes effective; , (ivii) when any supplement to the Prospectus or any issuer free writing prospectus or any Permitted Testing-the-Waters Communication or any amendment to the Prospectus has been filed or distributed, (iii) of any request by the Commission for any amendment of amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus or supplement to the Final Prospectus or for any other additional information; information with respect thereto, or (viv) of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order order, suspending the effectiveness of the Registration Statement or preventing or suspending the institution use of any proceeding for that purposePreliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and (vi) of if the receipt by CPS of any notification with respect Commission should enter such a stop order, to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent obtain the issuance lifting or removal of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereofpossible.
(bg) Prior to If the filing thereof with the Commission, CPS will submit to each Time of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Sale Prospectus is required under being used to solicit offers to buy the 1933 Act, as many copies of Shares at a time when the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Prospectus is not yet available to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement prospective purchasers and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur or condition exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, which it becomes is necessary to amend or supplement the Final Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchasercircumstances, not misleading, oror if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, if or if, in the opinion of counsel for the Underwriter, it is necessary at any time to amend or supplement the Final Time of Sale Prospectus to comply with any law or applicable law, forthwith to prepare, file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment and furnish, at its own expense, to the Registration Statement Underwriter and to any dealer upon request, either amendments or supplement supplements to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense Time of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Sale Prospectus so that the Final statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivereddelivered to a prospective purchaser, be misleadingmisleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Final Prospectus Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(eh) The If, during such period after the first date of the Offering as in the opinion of counsel for the Underwriter 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 Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Shares may have been sold by the Underwriter 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 cooperate use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Underwriters Securities Act, as soon as possible; and the Company will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in endeavoring writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A or 430C under the Securities Act is used, 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 in a timely manner 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 of the Shares.
(k) Promptly to furnish such information or to take such action as the Underwriter may reasonably request and otherwise to qualify the Certificates Shares for offer and sale under the securities or “blue sky” laws of such states and other jurisdictions (domestic or foreign) as the Underwriters may designate Underwriter shall reasonably request, and will maintain to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as required for may be necessary to complete the distribution of the CertificatesShares; provided, except however, that the Company will shall not be obligated required to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, corporation or to file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction (excluding service of process with respect to which it is not subject the offer and will arrange for the determination sale of the legality Shares); and to promptly advise the Underwriter of the Certificates for purchase receipt by institutional investors. The the Company will, from time of any notification with respect to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution suspension of the Certificatesqualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fl) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to To make generally available to Certificateholders the Company’s security holders and to the Underwriter as soon as practicable, but no later than sixteen months after the Effective Date, practicable an earnings statement of the Trust covering a period of at least twelve consecutive 12 months beginning after such Effective Date and satisfying 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 (including and Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On To use its best efforts to maintain the listing of the Common Stock, including the Shares, on the Exchange.
(n) During the period beginning on the date hereof and ending 45 days after the date of the Prospectus, and without the prior written consent of the Underwriter, not to (i) issue, offer, sell, pledge, 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, make any short sale, 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, forward contract, hedging transaction 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, or (iv) publicly disclose or 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 (A) the Shares to be sold hereunder, (B) the grant of options to purchase shares of Common Stock pursuant to the Company’s stock option plans and its omnibus equity plan under the terms of such plans in effect on the date hereof and disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, provided such options are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, or the sale of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus (or the filing of a registration statement on Form S-8 to register the shares of Common Stock issuable under such plans), (C) 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 the Underwriting Agreement, or (D) the issuance of shares of Common Stock or securities exercisable for, convertible into or exchangeable for Common Stock in connection with any acquisition, merger, collaboration, licensing or other joint venture or strategic transaction involving the Company in an amount not to exceed 10% of the Company’s outstanding Common Stock as of the Closing Date, provided further that, in the case of an issuance pursuant to this clause (D), any recipient of shares of common stock shall have executed and delivered to the Underwriter a lock-up agreement in the form of Exhibit A hereto. If, during the 45-day period, the closing price of the Company’s common stock on the NASDAQ Global Select Market exceeds $14.00 per share for five trading days, this lock-up agreement shall be terminated and be of no further force or effect.
(o) To prepare, if the Underwriter reasonably requests, a final term sheet relating to the Offering, containing only information that describes the final terms of the Offering in a form consented to by the Underwriter, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date on which the final terms have been established for the Offering.
(p) To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.
(q) Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company and CPS shall to facilitate the sale or resale of the Shares.
(r) Not, at any time at or after the execution of this Agreement, to offer or sell any Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, except in each case other than the Prospectus.
(s) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(t) To use its commercially reasonable efforts to cause the Certificate Insurer Shares to issue be eligible for clearance through DTC.
(u) To promptly notify the Policy Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the Trustee for later of (a) the benefit time when a prospectus relating to the Shares is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (b) the expiration of the holders lock-up period described in Section 7(n) above.
(v) If at any time following the distribution of any Permitted Testing-the-Waters Communication, there occurred or occurs an event or development as a result of which such Permitted Testing-the-Waters Communication 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 light of the Certificates in form circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and substance satisfactory will promptly amend or supplement, at its own expense, such Permitted Testing-the-Waters Communication to each Underwritereliminate or correct such untrue statement or omission.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thateach Investor as follows:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file The Company shall make all necessary filings with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior respect to the termination of the offering of the Certificatestransactions contemplated by this Agreement, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with under the 1933 Act Regulationsand the 1934 Act, under applicable blue sky or similar securities laws and shall use all reasonable efforts to obtain required approvals and clearances with respect thereto. CPS The Company will promptly advise comply with the Underwriters requirements of Rule 430A and will notify the Investors immediately, and confirm the notice in writing, (i) when the Registration Statement, if not any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed or become effective; filed, (ivii) of the receipt of any comments from the Commission on the Registration Statement, (iii) of any request by the Commission for any amendment of to the Registration Statement or any amendment or supplement to the Final Prospectus or for any other additional information; , (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution initiation of any proceeding proceedings for that purpose; , and (viv) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates Rights Shares for offering or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding proceedings for any such purpose. CPS The Company will use its best efforts promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior to the filing thereof with the Commission, CPS The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into prepare and file the Registration Statement or Final any amendments thereto (including any filing under Rule 462(b)) or any amendment or supplement to either the prospectus included in the Registration Statement at the time it becomes effective or to the Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time whether pursuant to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus1934 Act or otherwise, or as thereafter amended or supplemented, as will furnish the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed Investors with copies of the Registration Statement and all amendments thereto including all exhibits filed therewithany such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will deliver not file any such amendment or supplement or use any such prospectus to which any Investor or counsel for the Underwriters Investors shall reasonably object, provided that such number objection shall not prevent the filing of copies any such amendment or supplement which, in the opinion of counsel for the Company, is required to be filed by the requirements of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 1933 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, or the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. .
(c) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersInvestors, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Final Prospectus it is delivered to a purchaser, not misleading, or, or if for any other reason it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement order to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of forthwith amend or supplement the Underwriters Prospectus (in form and will promptly either (i) prepare substance satisfactory to counsel for the Investors and file, or cause to be prepared and filed, in compliance with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii1933 Act) prepare and fileso that, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented supplemented, the Prospectus will notnot include an untrue statement of a material fact or omit to state a material fact necessary to make the statement therein, in the light of the circumstances when existing at the time it is so delivereddelivered to a purchaser, be misleading, or so that the Final Prospectus not misleading and will comply with applicable lawthe 1933 Act and the 1934 Act, and the Company will furnish to the Investors a reasonable number of copies of such amendment or supplement.
(d) The Company will (i) use the net proceeds received by it from the sale of the Rights Shares to repay amounts outstanding under the Credit Agreement and (ii) not, without the prior written consent of the Oaktree Investors, borrow any Tranche B Advances (as defined in the Credit Agreement) under the Credit Agreement.
(e) The Company will cooperate with If, at the Underwriters time that the Registration Statement becomes effective, any information shall have been omitted therefrom in endeavoring to qualify the Certificates for sale reliance upon Rule 430A under the laws 1933 Act, then immediately following the execution of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesthis Agreement, except that the Company will not be obligated to qualify prepare, and file or transmit for filing with the Certificates Commission in any jurisdiction in which accordance with such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject Rule 430A and will arrange for the determination Rule 424(b) of the legality 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Certificates for purchase by institutional investors. The Company willRegistration Statement (including an amended Prospectus), from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for containing all information so long a period as the Underwriters may reasonably request for distribution of the Certificatesomitted.
(f) The Company and its Subsidiaries shall not investafford to the Investors and their accountants, counsel and other representatives reasonable access during normal business hours (and at such other times as the parties may mutually agree) throughout the period prior to the Closing to all of its properties, books, contracts, commitments, records and personnel and, during such period, the Company shall furnish promptly to the Investors (i) a copy of each report, schedule and other document filed or otherwise use received by it pursuant to the proceeds requirements of federal or state securities laws and (ii) all other information concerning its business, properties and personnel as such Investor may reasonably request.
(g) In addition to and without limiting the Company's covenants contained in SECTION 5(a), the Company will (i) take promptly all actions necessary to make the filings required of the Company under Section 7A of the ▇▇▇▇▇▇▇ Act (Title II of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended) and the rules and the regulations thereunder (collectively, the "HSR ACT"), (ii) comply at the earliest practicable date with any request for additional information received by the Company from its sale the Federal Trade Commission or the Antitrust Division of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement Department of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee Justice pursuant to the Pooling HSR Act and Servicing Agreement, as soon as such statements (iii) cooperate with the Rights Investors in connection with Rights Investors' filing under the HSR Act and reports are furnished to in connection with resolving any investigation or other regulatory inquiry concerning the Trusteetransactions contemplated by this Agreement commenced by either the Federal Trade Commission or the Antitrust Division of the Department of Justice or state attorneys general.
(h) The Company or CPS shall, from will reimburse the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of Investors for all out-of-pocket expenses reasonably incurred by them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement this Agreement and the Final Prospectus and in order to evidence the accuracy or completeness of any consummation of the conditions contained transactions contemplated hereby, whether or not the transactions contemplated in this Agreement; Agreement are consummated, including without limitation reasonable fees and all actions taken by the Company or CPS to authorize the sale disbursements of the Certificates shall be reasonably satisfactory in form and substance to each Underwritercounsel.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause notify the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(bRepresentatives promptly (i) a Final Prospectus containing information previously omitted at of the time of effectiveness of when any post-effective amendment to the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have to the Prospectus or the Sale Preliminary Prospectus has been filed with the Commission pursuant to Rule 424(b)filed; (iii) when, prior to termination of the offering receipt of any comments from the Certificates, any amendment to the Registration Statement shall have been filed or become effectiveCommission; and (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Registration Statement, Prospectus or for the Sale Preliminary Prospectus or additional information relating thereto. If the Company has elected to rely on Rule 430B under the Act, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430B with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430B, if applicable. If the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b). The Company will not file any other additional information; amendment or supplement to the Registration Statement, Prospectus or the Sale Preliminary Prospectus which is not in compliance with Rules 424(b), 430B or 434 under the Act or to which the Representatives shall reasonably object by notice to the Company after having been furnished a copy thereof a reasonable time prior to the filing.
(vb) The Company will advise the Representatives, promptly after the Company receives notice or obtains knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution Statement, of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates Common Shares for offering or sale in any jurisdiction or quoted for trading on The NASDAQ Global Select Market, or of the initiation or, to the Company’s knowledge, threatening of any proceeding for any such purpose. CPS ; and the Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the its withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would a stop order or suspension should be deemed to be incorporated by reference into the Registration Statement or Final Prospectusissued.
(c) The Company will deliver toDuring the period beginning on the Initial Sale Time and ending on the later of the Closing Date or such date, or upon as in the order of, opinion of the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or a dealer (the “Distribution Period”), the Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in connection with effect, so far as necessary to permit the sale and distribution of any Certificatesthe Common Shares by the Underwriters as contemplated by the provisions hereof and the Prospectus. If, during the Distribution Period the Sale Preliminary Prospectus is being used to solicit offers to purchase Common Shares at a time when the Prospectus is not yet available and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Sale Preliminary Prospectus in writing in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Sale Preliminary Prospectus to comply with applicable law, the Company shall promptly 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 Sale Preliminary Prospectus so that the statements in the Sale Preliminary Prospectus as so amended or supplemented will not, in the light of the circumstances when the Sale Preliminary Prospectus is delivered to a prospective purchaser, be misleading or so that the Sale Preliminary Prospectus, as amended or supplemented, will comply with applicable law. If during the Distribution Period any event occurs, or fails to occur, as a result of which, in the judgment of the Company or in the reasonable opinion of the UnderwritersRepresentatives, it becomes (i) the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserthen existing, not misleading, or, if or (ii) it is becomes necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, then the Company will promptly notify each of the Underwriters Representatives and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission Commission, and furnish at its own expense to the Underwriters, an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawthe Act.
(ed) The Company will shall cooperate with the Representatives and counsel for the Underwriters in endeavoring to qualify the Certificates Common Shares for offering and sale under (or obtain exemptions from the application of) the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may reasonably designate; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to service of general process, to qualification to do business as a foreign entity, to registration as a securities dealer or to taxation as a foreign corporation. In each jurisdiction in which the Common Shares have been so qualified, the Company will file such statements and reports as may be required to be filed by it by the laws of such jurisdictions as the Underwriters may designate and will maintain jurisdiction to continue such qualifications qualification in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatessecurities.
(fe) The Company shall not invest, or otherwise use During the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstDistribution Period, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) the Registration Statement as soon as they are availableoriginally filed (including all exhibits filed therewith), copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, each amendment thereto (without exhibits) and (ii) such additional information concerning the business and financial condition each of the Company Preliminary Prospectuses, the Prospectus and all amendments and supplements thereto, in each case as soon as available and, with respect to the documents in clause (ii), in such quantities as the Underwriter Representatives may from time to time reasonably request.
(kf) On or before For a period of two years commencing with the Closing Datedate hereof, the Company will furnish to the Representatives copies of all documents, reports and CPS other information furnished by the Company to the holders of its Common Stock generally except, in each case, if available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(g) The Company shall make generally available to holders of the Common Stock as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the date on which a prospectus supplement is filed pursuant to Rule 424(b) under the Act that satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(h) The Company shall apply the net proceeds received by it from the sale of the Common Shares for the purposes set forth in the Prospectus under the caption “Use of Proceeds,” including the repayment of all indebtedness outstanding, if any, under the credit facility described under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Sources of Capital — Revolving Credit Facility”.
(i) The Company shall not take, directly or indirectly, prior to the termination of the offering contemplated by this Agreement, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares.
(j) For so long as the shares of Common Stock sold in the offering contemplated by this Agreement are listed on The NASDAQ Global Select Market or a comparable securities exchange or market, the Company shall engage and maintain a registrar and transfer agent for the Common Stock.
(k) The Company shall file, on a timely basis, with the Commission all reports and documents required to be filed under the Exchange Act during the Distribution Period.
(l) For a period of 90 days after the date of the Prospectus (the “Lock-Up Period”) the Company shall not, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇ shall cause the respective computer records & Co., (1) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company and CPS and Samco that are substantially similar to Common Stock, or enter into a transaction that would have the same effect; or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise; (2) publicly disclose the intention to make any such offer, sale, hypothecation, pledge, grant or disposition, or to enter into any such transaction, swap, hedge or other arrangement; or (3) file or cause to be declared effective a registration statement under the Act relating to the Receivables offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to be marked to show the Trustee's absolute ownership purchase Common Stock or any other securities of the ReceivablesCompany that are substantially similar to Common Stock; provided, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if anyhowever, that the ratings provided with respect foregoing restrictions do not apply to (i) the registration of the Common Shares and the sales thereof to the Certificates by either Underwriters pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Prospectus and the Incorporated Documents, and (iii) the grant of employee stock options not exercisable during the Lock-Up Period pursuant to plans described in the Incorporated Documents; provided, further, that, if (x) within 15 days of the Rating Agencies is conditional upon expiration of the furnishing Lock-Up Period, the Company issues an earnings release or discloses material news, or a material event relating to the Company occurs, or (y) before the expiration of documents the Lock-Up Period, the Company announces that it will release earnings results during the 15-day period beginning on the last day of the Lock-Up Period, then in any such case the restrictions imposed by this Section 4A(l) shall continue to apply until the expiration of the 15-day period beginning on the issuance of the earnings release, the disclosure of the material news or the taking occurrence of any other actions the material event; provided, moreover, that the foregoing clause shall not apply if the Company delivers to ▇.▇. ▇▇▇▇▇▇▇▇ & Co., not sooner than 18 nor later than 16 days before the last day of the Lock-Up Period, a certificate, signed by the Company Chief Financial Officer or CPSChief Executive Officer of the Company, CPS shall, or shall cause certifying on behalf of the Company to, furnish such documents and take any such other actionsthat the shares of Common Stock are not “actively traded securities,” as defined in Rule 101(c)(1) of Regulation M under the Exchange Act.
(m) On The Company shall not, without the Closing Dateprior written consent of the Representatives, prepare or use a Free Writing Prospectus in connection with the offering and sale of the Common Shares or take any actions that would require the Company or the Underwriters to file a Free Writing Prospectus pursuant to Rule 433 of the Rules and Regulations. The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, or retention where required, and legending. The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company and CPS shall cause the Certificate Insurer to issue the Policy will give prompt notice thereof to the Trustee for Representatives and, if requested by the benefit of the holders of the Certificates in form Representatives, will prepare and substance satisfactory furnish without charge to each UnderwriterUnderwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein as identified in Section 11 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Sterling Construction Co Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective So long as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period shall remain in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Acteffect, the Company will promptly notify each (a) defend the right, title and interest of the Underwriters Agent, for the benefit of the Banks and will promptly either the Lessor, in the Collateral against the claims and demands of all Persons; (ib) prepare not amend, modify, or waive any of the terms and fileconditions of, or settle or compromise any claim in respect of, any Collateral in a manner which would materially adversely affect the interests of the Agent, for the benefit of the Banks and the Lessor; (c) not sell, assign, transfer, or otherwise dispose of, or grant any option with respect to, or pledge or otherwise encumber, or release, any of the Collateral or any interest therein except in a manner whereby the Agent alone would be entitled to receive the proceeds therefrom; (d) notify the Agent monthly of any default that continues beyond any applicable notice or grace period under any Pledged Mortgage Loan which has Warehousing Collateral Value; (e) maintain, or cause to be prepared maintained, in its chief executive office or in the offices of a computer service bureau approved by the Agent, for the processing of Mortgage Notes and filedMortgage-backed Securities, with originals, or copies if the Commission an appropriate amendment original has been delivered to the Registration Statement or supplement Agent, of its Mortgage Notes and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other records, information and data, relating to the Final Prospectus or (ii) prepare Collateral, and file, or cause to be prepared and filed, with give the Commission (at the expense Agent written notice of the Company) an appropriate filing under the 1934 Act which shall place where such records, information and data will be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate maintained; and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from maintain sufficient documentary evidence in its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided files with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPSeach Pledged Mortgage Loan to substantiate compliance with all applicable federal, CPS shallstate and local laws, or shall cause the Company toregulations and rules, furnish such documents and take any such other actionsincluding but not limited to those specified in Section 5(h) hereof.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the The Registration Statement, if not effective at the Execution TimeStatement and any amendments thereto have been declared effective, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to Bear Stearns of such timely filing. If the Company elects to rely on Rule 4▇▇, ▇▇▇ Company will prepare and file a Final term sheet that complies with the requirements of Rule 434, and the Prospectus containing information previously omitted shall not be "materially different," as such term is used in Rule 434, from the Prospectus included in the Registration Statement at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters it became effective.
(i) when the Registration Statement, if not effective at the Execution Time, Registratio▇ ▇▇▇▇▇ment and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (iii) of the Company's intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; and the Company shall make every commercially reasonable effort to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible possible. The Company will not file any amendment to the withdrawal Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement to which Bear Stearns shall reasonably object in writing after being timely furnishe▇ ▇▇ ▇▇vance a copy thereof. The Company will provide Bear Stearns with copies of all such amendments, filings and other document▇ ▇ ▇▇▇ficient time prior to any filing or other publication thereof to permit Bear Stearns a reasonable opportunity to review and comment thereon.
(b) Prior to the filing thereof The Company shall comply with the Commission, CPS will submit Securities Act to each permit completion of the Underwritersdistribution as contemplated in this Agreement, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered by an Underwriter or dealer under the Securities Act in connection with the sale sales of any CertificatesShares, any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time of delivery to the Final Prospectus is delivered to a purchaser, not misleading, or, or if to comply with the Securities Act or the Rules and Regulations it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will notify you promptly notify each of and prepare and file with the Underwriters Commission, subject to Section 5(a) hereof, an appropriate amendment or supplement (in form and substance satisfactory to Bear Stearns) which will correct such statement or omission and will promptly either (i) prepare and file, or cause use it▇ ▇▇▇▇ efforts to be prepared and filed, with the Commission an appropriate have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to each of you and Underwriters' Counsel a signed or supplement conformed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company's files manually signed copies of such documents for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement and all amendments of and supplements to such documents, if any, as you may reasonably request. As promptly as possible on the business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(d) The Company consents to the Final Prospectus or (ii) prepare use and file, or cause to be prepared and filed, with the Commission (at the expense delivery of the CompanyPreliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawSecurities Act.
(e) The Company will cooperate use its commercially reasonable efforts, in cooperation with Bear Stearns, at or prior to the Underwriters in endeavoring time of effectiveness of the Registration ▇▇▇▇▇▇▇nt, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions jurisdictions, domestic or foreign, as the Underwriters Bear Stearns may designate and will to maintain such qualifications qualification in effect so long for ▇▇ ▇▇▇g as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to become subject to taxation, to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesjurisdiction.
(f) The Company shall will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not investlater than 45 days after the end of the first fiscal quarter ending after the first anniversary of the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), or otherwise use the proceeds received by an earnings statement of the Company from its sale and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Certificates in such a manner as would require Securities Act and the Rules and Regulations (including, at the option of the Company, CPS or the Trust to register as an investment company under the 1940 ActRule 158).
(g) Until During the retirement period of 90 days from the date of the CertificatesProspectus, or until such time as without the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstprior written consent of Bear Stearns, the Company (i) will deliver not, directly or indirectly, issue, offe▇, ▇▇▇▇, agree to each Underwriter the annual statements issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnishedany Relevant Security, or make availableany announcement of any of the foregoing, (ii) will not establish or increase any "put equivalent position" or liquidate or decrease any "call equivalent position" (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will assist the Underwriters in obtaining an undertaking in substantially the form of Annex III hereto of each of its officers, directors and stockholders listed on Schedule II attached hereto not to engage in any of the aforementioned transactions on their own behalf, other than the sale of Shares as contemplated by this Agreement, the Company's issuance of Common Stock upon (i) the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof; (ii) the exercise of currently outstanding options; (iii) the grant and exercise of options under, or cause to be made availablethe issuance and sale of shares pursuant to, to employee stock option plans in effect on the date hereof, each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information described in the Registration Statement and the Final Prospectus Prospectus, and (iv) the issuance by the Company of securities in order to evidence the accuracy acquire assets or completeness equity of any one or more businesses by merger, asset purchase, stock purchase or otherwise in an aggregate amount not to exceed five percent (5%) of the conditions contained outstanding shares of common stock of the Company as of the Closing Date; provided that each person who receives any securities pursuant to this clause (iv) executes and delivers to the Underwriters an undertaking in this Agreement; and all actions taken substantially the form of Annex III hereto for the remainder of the 90-day-period referred to therein. The Company will not file a registration statement under the Securities Act in connection with any transaction by the Company or CPS any person that is prohibited pursuant to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance foregoing, except for registration statements on Form S-8 relating to each Underwriteremployee benefit plans or Form S-4 relating to corporate reorganizations or other transactions under Rule 145.
(ih) The Company will cause During the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after period of five years from the Effective Date, an earnings statement effective date of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingRegistration Statement, the Company will furnish to the Underwriters Bear Stearns and, upon request, any other Representative copies of all reports or repo▇▇▇ ▇▇ other communications (financial or otherwiseother) furnished to security holders or made available from time to Certificateholderstime published or publicly disseminated by the Company, and will deliver to the Underwriters during such periodBear Stearns and, upon request, any other Representative (i) as soon as they are availablethe▇ ▇▇▇ ▇vailable, copies of any reports and reports, financial statements and proxy or information statements furnished to or filed by or on behalf of the Trust or the Company with the Commission pursuant to or any national securities exchange on which any class of securities of the Securities Exchange Act of 1934, as amended, Company is listed (unless available on the EDGAR System); and (ii) such additional information concerning the business bus▇▇▇▇▇ and financial condition of the Company as the Underwriter Representative may from time to time reasonably requestrequest (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided that Bear Stearns or such Representative agree to keep such additional informati▇▇ ▇▇▇▇idential (and to cause its employees and agents to do the same) prior to its publication or public dissemination by the Company unless otherwise required by applicable law.
(i) The Company will apply the net proceeds from the sale of the Shares substantially as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to file a Notification Form: Listing of Additional Shares with the NASDAQ Stock Market with respect to the Shares, if necessary.
(k) On or before The Company, during the Closing Dateperiod when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating Commission pursuant to the Receivables to be marked to show Securities Act and the Trustee's absolute ownership of Rules and Regulations within the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreementtime periods required thereby.
(l) To the extent, if any, that the ratings provided with respect The Company will use its commercially reasonable efforts to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents do and perform all things required to be done or the taking of any other actions performed under this Agreement by the Company prior to the Closing Date or CPSthe Additional Date, CPS shallas the case may be, or shall cause and to satisfy all conditions precedent to the Company to, furnish such documents delivery of the Firm Shares and take any such other actionsthe Additional Shares.
(m) On The Company will not take, and will cause its affiliates (within the Closing Datemeaning of Rule 144 under the Securities Act) not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which might reasonably be expected to constitute, cause or result in, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit stabilization or manipulation of the holders price of any security to facilitate the sale or resale of the Certificates in form and substance satisfactory to each UnderwriterShares.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS After the execution and delivery of this Agreement, the Company will not at any time, whether before or after the Effective Date, file any amendment of or supplement to the Registration Statement or the Prospectus of which you shall not previously have been advised and furnished with a copy, or which you or Honi▇▇▇▇ ▇▇▇l▇▇ ▇▇▇w▇▇▇▇ ▇▇▇ Cohn ("▇ounsel for the Underwriters") shall not have approved (which approval shall not be unreasonably withheld or delayed) or which is not in compliance with the Act or the Rules and Regulations.
(b) If the Registration Statement has not become effective, the Company will promptly file the Final Amendment with the Commission and will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, Statement to become effective as soon as reasonably practicable thereafter oreffective. If the Registration Statement has become effective, if the procedure in Company will file the Rule 430A is followed, prepare and timely file Prospectus or other Prospectus with the Commission under as promptly as practicable, but in no event later than is permitted by Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations). CPS The Company will promptly advise the Underwriters you (i) when the Registration Statement, if not Statement or any post-effective at the Execution Time, and any amendment thereto, thereto shall have hereafter become effective; (ii) when , or any amendments or supplements to the Final Prospectus, and Prospectus or any supplement thereto, document which shall be incorporated by reference into the Prospectus shall have been filed with the Commission pursuant to Rule 424(b)Commission; (iiiii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) nature and substance of any request by of the Commission or any state or other regulatory body for any amendment or supplement of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (viii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.stop
Appears in 1 contract
Covenants of the Company. SECTION 1. The Company covenants and agrees agrees, so long as any of the bonds of Series NN are outstanding or until provision shall have been made for the redemption or payment thereof by the deposit with the several Underwriters thatTrustee of money necessary to effect such redemption or payment, as follows:
(a) CPS will use its best efforts to cause the Registration StatementThe Company, if not effective during or at the Execution Timeclose of the calendar year 2003, and any amendment theretoduring or at the close of each calendar year thereafter, shall charge against the income for such calendar year and place to become effective as soon as reasonably practicable thereafter orthe credit of a "depreciation reserve account" to be kept on its books, if the procedure in Rule 430A is followedgreater of the following two amounts: (i) the amount of $1,550,000, prepare and timely file with or (ii) an amount equal to 2 1/2% of the Commission under Rule 424(bsum of
(i) a Final Prospectus containing information previously omitted the aggregate principal amount of all bonds which, at the time such credit is placed to said "depreciation reserve account", shall be outstanding and shall have been outstanding under the Mortgage as supplemented for a period of effectiveness not less than six (6) months, or which at such time shall have been outstanding under the Mortgage as supplemented for less than six (6) months, if such bonds shall have been issued, or the proceeds thereof shall have been used, directly or indirectly, for or on account of the Registration Statement in reliance upon Rule 430A. Prior to the termination pledge, acquisition, exchange, cancellation, payment, refundment, redemption or discharge at, before or after maturity of the offering bonds of any series theretofore issued under the Mortgage or of any "underlying bonds" or "specified obligations" as defined in Section 4 of Article III of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effectiveMortgage; and
(ii) when the Final Prospectusaggregate principal of all indebtedness of the Company secured by a mortgage lien upon the properties or assets of the Company, which is a lien superior to the lien of the Mortgage, except (A) any such mortgage indebtedness the evidences of which shall then be pledged with the Trustee under the provisions of the Mortgage or pledged with the Trustee under any mortgage constituting a lien superior to the lien of the Mortgage on any part of the properties or assets of the Company, and (B) any supplement thereto, such mortgage indebtedness for the payment or redemption of which the necessary moneys shall have been filed deposited with the Commission pursuant Trustee under the Mortgage securing the same; provided, however, that (1) the amount required by this subparagraph (a) to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment be placed to the Registration Statement shall have been filed or become effective; (iv) credit of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus such "depreciation reserve account" in or for any other additional information; (v) calendar year shall be deemed to include and not to be in addition to amounts which, by the provisions of the issuance by Mortgage, the Commission Company is required to add to any depreciation reserve account for such year, (2) nothing in this subparagraph (a) shall prevent the Company from crediting to such "depreciation reserve account", during or at the close of any stop order suspending calendar year, an amount greater than the effectiveness of the Registration Statement or the institution of any proceeding amount required by this subparagraph (a) for that purpose; such year, and (vi3) the Company may, from time to time, during each such calendar year, charge against such "depreciation reserve account" the cost of depreciable property retired by it during such year, including the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification andcost, if issued or suspendedany, to obtain as soon as possible the withdrawal thereofof dismantling such retired property, less any salvage credits applicable thereto.
(b) Prior The Company, after it shall have issued any of the bonds of Series NN-1 and bonds of Series NN-2, shall not request the Trustee
(i) to authenticate bonds of any series under the Mortgage
(A) pursuant to Section 2 of Article III of the Mortgage for or on account of the acquisition and cancellation, or of the payment, cancellation, redemption or other discharge at, before or after maturity, affected prior to January 1, 1951, of any bonds of any series theretofore issued under the Mortgage, or
(B) pursuant to Section 4 of Article III of the Mortgage, for or on account of the pledge, acquisition, exchange, cancellation, payment, refundment, redemption or discharge effected prior to January 1, 1951, of "underlying bonds" or "specified obligations" mentioned in said Section 4, or
(C) pursuant to Section 5 of Article III of the Mortgage, for or in respect of expenditures made prior to January 1, 1951, for or on account of "permanent property", or
(ii) to pay to the filing thereof with Company any cash pursuant to Section 6 of said Article III for or on account of any transactions mentioned in clause (A) or clause (B) of subdivision (i) of this subparagraph (b) or for or in respect of any expenditures mentioned in clause (C) of subdivision (i) of this subparagraph (b). Neither shall the Commission, CPS will submit Company request the Trustee to each authenticate bonds of any series under the provisions of Section 4 of Article III of the UnderwritersMortgage or to pay the Company any moneys under Section 6 of said Article III or under Article IX of the Mortgage for or on account of the payment, for its approval discharge and cancellation effected on or after reasonable notice thereofJanuary 1, such approval not to be unreasonably withheld 1944, at, before or delayed, a copy after maturity of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering Refunding Mortgage Five Per Cent Gold Bonds of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusCompany, dated September 1, 1897, due September 1, 1947.
(c) The Company will deliver to, or upon shall not request the order of, the Underwriters, from time Trustee to time, as many copies authenticate bonds of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required series under the 1933 Act, as many copies of the Final Prospectus, Mortgage or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to pay to the Underwriters at Company any cash deposited with or before received by the Closing DateTrustee under the Mortgage (except cash deposited with or received by the Trustee as and for a sinking fund for any series of bonds which have been or may hereafter be issued under the Mortgage), two signed copies unless the Company as a part of the Registration Statement and all amendments thereto including all exhibits filed therewithsuch request, and will deliver in addition to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including all other documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law the Mortgage to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in request, shall deliver to the Registration Statement Trustee a certificate or certificates, signed by the President or the Executive Vice President or the Chief Financial Officer or a Vice President and by the Final Prospectus and in order to evidence the accuracy Treasurer or completeness of any an Assistant Treasurer of the conditions contained Company (i) showing, in this Agreement; and all actions taken case such request is for the authentication of bonds pursuant to Section 5 of Article III of the Mortgage or for the payment of cash pursuant to Section 6 of said Article III for or in respect of expenditures made by the Company on or CPS after January 1, 1951, for or on account of "permanent property":
(A) the total amount of expenditures (reduced to authorize the sale extent required, if any, by the provisions of clause (G) of this subdivision (i)) made on or after January 1, 1951, for or on account of "permanent property";
(B) the original cost of all properties, subject to the lien of the Certificates Mortgage at any time on or after January 1, 1951, replaced or retired on or after January 1, 1951, less, if any such property shall be reasonably satisfactory in form have been released from the lien of the Mortgage pursuant to any applicable provision of the Mortgage and substance to each Underwriter.obtain such release cash shall have been deposited with the Trustee, the amount of such cash;
(iC) The Company will cause an amount equal to the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement sum of (1) 133-1/3% of the Trust covering a period aggregate principal amount of at least twelve consecutive months beginning bonds which have been authenticated after January 1, 1951, pursuant to Section 5 of Article III of the Mortgage for or on account of such Effective Date and satisfying expenditures made on or after January 1, 1951, plus (2) 133-1/3% of the aggregate amount of deposited cash withdrawn after January 1, 1951, pursuant to the provisions of Section 11(a6 of Article III of the Mortgage for or in respect of such expenditures made on or after January 1, 1951, plus (3) 133-1/3% of the aggregate amount of excess of the nature described in subdivision (2) of Section 4 of Article III of the Act Mortgage eliminated or compensated, as in said subdivision (including Rule 158 promulgated thereunder).2) provided, for or in respect of expenditures of the Company for or on account of "permanent property" during said period commencing January 1, 1951;
(jD) So long as any an amount equal to 100% of the Certificates are outstanding, aggregate amount of moneys withdrawn by the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act provisions of 1934, as amended, and (ii) such additional information concerning the business and financial condition Article IX of the Company as the Underwriter may from time to time reasonably request.Mortgage on or after January 1, 1951, for or in respect of expenditures made for or on account of "permanent property";
(kE) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating an amount equal to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extentexcess, if any, of the amount shown pursuant to clause (A) above over the sum of the amounts shown pursuant to clauses (B), (C) and (D) above;
(F) that, for a period of twelve (12) consecutive calendar months (to be selected by the Company) ending within ninety (90) days next preceding such request, the "net earnings of the Company" shall have been at least twice the amount of the annual interest requirement of all "mortgage and prior lien debt of the Company";
(G) that the ratings provided with amount of the expenditure, if any, included in the expenditures set forth in clause (A) above in respect of any particular "permanent property", which at the time of its acquisition was subject to the Certificates by either lien of any mortgage existing or placed thereon at the time of its acquisition, does not exceed an amount equal to the excess, if any, of the Rating Agencies is conditional upon value (determined as provided in the furnishing first paragraph of documents Section 8 of Article III of the Mortgage) of such particular "permanent property" at the time of acquisition of such property over 133-1/3% of the principal amount of all indebtedness secured by all such mortgages existing or placed on such particular property at the taking time of the acquisition thereof, and that the amount of the expenditure, if any, included in the expenditures set forth in clause (A) above in respect of any other actions by particular "permanent property", which at the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take time of its acquisition was not subject to any such other actions.
(m) On the Closing Datelien, the Company and CPS shall cause the Certificate Insurer to issue the Policy does not exceed an amount equal to the Trustee for value (determined as provided in the benefit first paragraph of Section 8 of Article III of the holders Mortgage) of such particular "permanent property" at the Certificates in form and substance satisfactory to each Underwriter.time of acquisition of such property;
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A; and (ii) not file with the Commission any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b(a) Registration Statement unless CPS has furnished to each of which the Underwriters shall not previously have been advised and furnished with a copy for its review a reasonable period of time prior to the proposed filing and will not file any such proposed amendment or supplement as to which any of filing the Underwriters reasonably objects and shall not have given their consent or (b) of which is not in compliance with the 1933 Securities Act Regulations. CPS or the rules and regulations of the Commission thereunder.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Underwriters (i) when of any request made by the Commission for amendment of the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or the institution or threat of any action, investigation or proceeding for that purpose; and or (viiii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for such that purpose. CPS The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting or withdrawal thereof as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectuspossible.
(c) The Company will (i) on or before the Closing Date, deliver toto each of the Representatives a signed copy, or and to each of the other Underwriters a conformed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the order offiling thereof, a signed copy for each of the Representatives and conformed copy for each of the other Underwriters of each post-effective amendment, if any to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriters); (ii) as promptly as possible deliver to the Underwriters, from time to timeat such office as the Underwriters may designate, as many copies of any Preliminary Final the Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters ; and (iii) thereafter from time to time during the period when delivery of in which a Final Prospectus prospectus is required under by law to be delivered by an Underwriter or a dealer, likewise send to the 1933 Act, Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Final ProspectusProspectus and of any amended prospectus, or as thereafter amended or supplementedfiled by the Company with the Commission, as the Underwriters may reasonably request. The Company will deliver to request for the Underwriters at or before purposes contemplated by the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestSecurities Act.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur or condition exist as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. The Company authorizes the Underwriters and all dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, or, if it is necessary at any as from time to amend time amended or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference supplemented, in the Registration Statement to comply connection with the 1933 sale of the Shares in accordance with the applicable provisions of the Securities Act or and the 1934 Actapplicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will promptly notify each submit to you, for your information, a copy of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate with cooperate, when and as requested by you, in the Underwriters in endeavoring to qualify qualification of the Certificates Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or blue sky laws; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or file any general consent to service of process in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, will from time to time, prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until The Company agrees to pay the retirement costs and expenses relating to the following matters: (A) the preparation, printing or reproduction and filing with the Commission of the CertificatesRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or until supplement to any of them; (B) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such time copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (C) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to be sold by the Company; (D) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (E) the registration of the Shares under the Exchange Act and the listing of the Shares on the New York Stock Exchange; (F) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions (including filing fees and the reasonable fees and expenses of counsel for the Underwriters shall cease relating to maintain a secondary market such registration and qualification); (G) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (H) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Certificates, whichever occurs first, Shares; (I) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (J) all other costs and expenses incident to the performance by the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteeits obligations hereunder.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as As soon as practicable, but no in any event not later than sixteen months 45 days after the end of the first fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the rules and regulations promulgated under the Securities Act, an earnings statement of that will be in the Trust covering a period of at least twelve consecutive months beginning after such Effective Date detail required by, and satisfying will otherwise comply with, the provisions of Section 11(a) of the Securities Act (including and Rule 158 158(a) of the rules and regulations promulgated thereunder).
(ji) So long as any During a period of three years after the Certificates are outstandingdate hereof, the Company will furnish or make available to the Underwriters Underwriter copies of all periodic and special reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, shareholders of the Company including but not limited to (i) as soon as they are availablereasonably practicable after the end of each fiscal year, copies of any the Company's Annual Report and (ii) as soon as reasonably practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other information, documents or reports filed with the Commission.
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will not, directly or indirectly, without the prior written consent of W.R. Hambrecht + Co., LLC and financial statements filed by or J.P. Morgan Securities Inc., on behalf o▇ ▇▇▇ ▇▇▇▇▇▇▇▇ters, issue, off▇▇, ▇▇▇▇, ▇rant any option to purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 180 days from the effective date of the Trust or the Company with the Commission Registration Statement, except (i) pursuant to this Agreement, (ii) pursuant to the exercise of warrants outstanding on the date hereof and as described in the Prospectus or (iii) pursuant to the exercise of stock options outstanding on the date hereof, or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof and as described in the Prospectus.
(l) The Company will cause the Shares to be duly listed, and admitted and authorized for trading, on the New York Stock Exchange prior to the Closing Date.
(m) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(n) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(o) The Company will use its best efforts to timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and material substance with the applicable requirements under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company is familiar with the Investment Company Act of 19341940, as amended, and (ii) has in the past conducted its affairs, and will in the future conduct its affairs, in such additional information concerning a manner to ensure that the business Company was not and financial condition will not be an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the Underwriter may from time to time reasonably requestrules and regulations thereunder.
(kq) On The Company either has caused to be delivered to you or before will cause to be delivered to you prior to the Closing Dateeffective date of the Registration Statement a letter (the "Lock-Up Agreement") from each of the Company's directors, executive officers and five percent (5%) or greater stockholders and Sapphire Advisors LLC and each of its members stating that such person or entity agrees that he, she or it will not, without the Company prior written consent of W.R. Hambrecht + Co., LLC and CPS and J.P. Morgan Securities Inc. directly or ▇▇▇▇▇▇▇▇▇▇, (▇) sell, offer, c▇▇▇▇▇▇▇ shall cause ▇▇ sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option right or warrant to purchase, transfer the respective computer records economic risk of ownership in, make any short sale, pledge or otherwise dispose of any shares of capital stock of the Company and CPS and Samco relating or any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire any shares of capital stock of the Receivables Company, or (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 any shares of capital stock of the Company, whether any such transaction described in clause (i) or (ii) above is to be marked to show the Trustee's absolute ownership settled by delivery of shares of capital stock of the ReceivablesCompany or such other securities, and from and in cash or otherwise, in each case, that such person or entity directly or beneficially owns or acquires, for a period of 180 days after the Closing Date neither from the Company nor CPS nor Samco shall take any action inconsistent with effective date of the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementRegistration Statement.
(lr) To Until March [ ], 2006, the extentCompany will retain Ernst & Young LLP or a comparable qualified independent account, if any, that as its qualified accountants and such qualified tax experts as the ratings provided Company may identify to assist the Company in developing appropriate accounting systems and testing procedures and to conduct quarterly compliance reviews designed to determine compliance with respect to the Certificates by either REIT provisions of the Rating Agencies is conditional upon Code and the furnishing of documents or Company's exempt status under the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions1940 Act.
(ms) On The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Closing DateCompany is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company and CPS shall cause the Certificate Insurer to issue the Policy will not engage in any activities which might be subject to the Trustee for Commodity Exchange Act, as amended, unless such activities are exempt from the benefit Commodity Exchange Act or otherwise comply with that Commodity Exchange Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(t) Provided that the closing of the holders offering contemplated by this Agreement has occurred, the Company will make an election to qualify as a REIT under Section 856 through 860 of the Certificates in form Code with its 2004 U.S. Federal income tax return (and substance satisfactory will as necessary during 2004 make a joint election with one or more corporate subsidiaries, including SFR, to each Underwritertreat such subsidiaries as taxable REIT subsidiaries).
Appears in 1 contract
Sources: Underwriting Agreement (Sunset Financial Resources Inc)
Covenants of the Company. (a) The Company covenants and agrees with the several Underwriters thatas follows:
(ai) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Timetime of execution of this Agreement, and any amendment amendments thereto, to become effective as soon promptly as reasonably practicable thereafter or, if possible. The Company shall prepare the procedure Prospectus in Rule 430A is followed, prepare a form approved by the Representatives and timely file with the Commission under Rule 424(b) a Final such Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act.
(iiiii) when, prior to termination of The Company shall promptly advise the offering of the Certificates, Representatives in writing (A) when any amendment to the Registration Statement shall have been filed or become effective; , (ivB) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vC) of the prevention or suspension of the use of any Preliminary Prospectus or the Prospectus or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; purpose and (viD) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. CPS will The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any document incorporated by reference in the Registration Statement unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible the withdrawal thereof.
(biii) Prior If, at any time when a Prospectus relating to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not Shares is required to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed delivered under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Securities Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesRules, any event shall occur occurs as a result of which, in which the judgment Prospectus as then amended or supplemented would include any untrue statement of the Company a material fact or in the reasonable opinion of the Underwriters, it becomes omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law the Securities Act or the Rules, the Company shall promptly prepare and file with the Commission, subject to file under the 1934 second sentence of paragraph (ii) of this Section 6(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act any document which would be deemed or Rule 158 of the Rules.
(v) The Company shall furnish to be incorporated by reference in the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to comply with each other Underwriter a copy of the 1933 Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a Prospectus by an Underwriter or dealer may be required by the Securities Act or the 1934 ActRules, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. If applicable, the Company will promptly notify each copies of the Registration Statement and Prospectus and each amendment and supplement thereto furnished to the Underwriters and will promptly either (i) prepare and file, or cause be identical to be prepared and filed, the electronically transmitted copies thereof filed with the Commission an appropriate amendment pursuant to EDGAR, except to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated extent permitted by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawRegulation ▇-▇.
(evi) The Company will shall cooperate with the Underwriters Representatives and their counsel in endeavoring to qualify the Certificates Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Underwriters Representatives may designate and will shall maintain such qualifications in effect so long as required for the distribution of the CertificatesShares; provided, except however, that the Company will shall not be obligated required in connection therewith, as a condition thereof, to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process in any jurisdiction or subject itself to taxation as doing business in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesjurisdiction.
(fvii) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, the Rules or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets Corp., which may be withheld in their sole discretion, for a period of 90 days after the date of this Agreement, the Company and each of its individual directors, executive officers and the entities listed on Schedule I hereto shall not investissue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise use the proceeds received by dispose of, directly or indirectly, any equity securities of the Company from its sale (or any securities convertible into, exercisable for or exchangeable for equity securities of the Certificates in such a manner as would require Company), except for the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement issuance of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee Shares pursuant to the Pooling Registration Statement and Servicing Agreement, as soon as such statements and reports are furnished the issuance of shares pursuant to the Trustee.
(h) The Company Company's existing stock option plans or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs stock purchase plan as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information described in the Registration Statement and the Final Prospectus Prospectus.
(ix) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and in order by the Nasdaq National Market (including any required registration under the Exchange Act).
(x) Prior to evidence the accuracy completion of the distribution of the Shares by the Underwriters, the Company will issue no press release or completeness other communications, directly or indirectly, and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale offering of the Certificates shall be reasonably satisfactory in form and substance Shares, without prior notice to each Underwriterthe Representatives.
(ixi) The Company will cause apply the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after net proceeds from the Effective Date, an earnings statement offering of the Trust covering a period Shares in the manner set forth under "Use of at least twelve consecutive months beginning after Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including, without limitation, those relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus and any document incorporated by reference therein, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 6(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such Effective Date registration and satisfying qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in connection with its review of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for quotation on the Nasdaq National Market; and (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters. Subject to the provisions of Section 11(a) 9, the Underwriters agree to pay, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the Act (including Rule 158 promulgated thereunder).
(j) So long as any obligations of the Certificates are outstanding, Underwriters under this Agreement not payable by the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934preceding sentence, as amendedincluding, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Datewithout limitation, the Company fees and CPS and ▇▇▇▇▇ shall cause the respective computer records disbursements of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee counsel for the benefit of the holders of the Certificates in form and substance satisfactory to each UnderwriterUnderwriters.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you and the several Underwriters participating in the Offering of any Series of Certificates that:
(a) CPS In connection with the execution of each Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement to cause be filed under the Registration StatementAct setting forth the principal amount of Certificates covered thereby and their terms not otherwise specified in the Prospectus, the price at which the Certificates are to be purchased by the Underwriters from the Company, either the initial public offering price or the method by which the price at which the Certificates are to be sold will be determined, the selling concession and reallowance, if not effective at the Execution Timeany, any delayed delivery arrangements, and any amendment thereto, to become effective such other information as soon as reasonably practicable thereafter or, if you and the procedure Company deem appropriate in Rule 430A is followed, prepare and timely file connection with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS but the Company will not file any amendment of amendments to the Registration Statement or amendment any amendments or supplement (including the Final Prospectus or any Preliminary Final Prospectus) supplements to the Base Prospectus Prospectus, unless it shall first have delivered copies of such amendments or any Rule 462(b) Registration Statement unless CPS has furnished supplements to each of the Underwriters a copy for its review prior to filing you, and you shall not have objected thereto promptly after receipt thereof. The Company will not file any such proposed amendment advise you or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will your counsel promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with notice is received from the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, that any post-effective amendment to the Registration Statement shall have been filed has become or will become effective; , and (ivii) of any request order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Certificates, or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission for or any amendment of authority administering any state securities or Blue Sky law, as soon as the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; Company is advised thereof, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, communication and to obtain as soon as possible the withdrawal thereofits lifting, if issued.
(b) Prior The Company will cause any Computational Materials and any Structural Term Sheets (each as defined in Section 8 below) with respect to each Series of Certificates that are delivered by the Underwriters to the filing thereof with the Commission, CPS will submit Company pursuant to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed Section 8 to be filed or with the Commission on a copy of any document proposed Current Report on Form 8-K (a "Current Report") pursuant to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.Rule 13a-11
(c) The Company will deliver to, or upon If at any time when a prospectus relating to the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus Certificates is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any Certificates, Act any event shall occur occurs as a result of which, which in the judgment opinion of counsel for the Company or in the reasonable opinion Underwriters the Prospectus as then amended or supplemented would include an untrue statement of the Underwriters, it becomes a material fact or omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law the Act, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; provided, however, that (i) the Company will not be required to file under the 1934 Act any document which would be deemed such amendment or supplement with respect to be any Computational Materials, Structural Term Sheets or Collateral Term Sheets incorporated by reference in the Registration Statement Prospectus other than any amendments or supplements of such Computational Materials or Structural Term Sheets that are furnished to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each by the Underwriter pursuant to Section 8(e) hereof or any amendments or supplements of such Collateral Term Sheets that are furnished to the Company by the Underwriter pursuant to Section 9(d) hereof which are required to be filed in accordance therewith and (ii) any such amendment or update prepared at the request of the Underwriters and will promptly either (i) prepare and file, or cause to as required by applicable securities laws more than nine months after the Closing Date shall be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriters.
(ed) The Company will cooperate with the Underwriters in endeavoring With respect to qualify the Certificates for sale under the laws each Series of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders the holders of the Certificates and will deliver to you, in each case as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement covering the twelve-month period beginning after the date of the Trust covering a period Terms Agreement in respect of at least twelve consecutive months beginning after such Effective Date and satisfying series of Certificates, which will satisfy the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)with respect to the Certificates.
(je) So long The Company will furnish to you copies of the Registration Statement (two of which will be signed and will include all documents and exhibits thereto or incorporated by reference therein), each related preliminary prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as any soon as available and in such quantities as you request.
(f) The Company will use its best efforts arrange for the qualification of the Certificates are outstandingfor sale and the determination of their eligibility for investment under the laws of such jurisdictions as you reasonably designate and will continue such qualifications in effect so long as reasonably required for the distribution; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process; and provided further that the Underwriters will pay all costs and expenses associated therewith.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement and any Terms Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel and accountants) incurred by them in connection with qualification of the Certificates and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing of memoranda relating thereto, for any fees charged by the nationally recognized statistical rating agencies for the rating of the Certificates, for the filing fee of the National Association of Securities Dealers, Inc. relating to the Certificates, if applicable, and for expenses incurred in distributing preliminary prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be delivered in connection with the sale of the Certificates pursuant to this Agreement, the Company will furnish file or cause to the Underwriters copies of be filed, on a timely and complete basis, all reports or other communications (financial or otherwise) furnished or made available documents that are required to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements be filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934Section 13, as amended, and (ii14 or 15(d) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestExchange Act.
(ki) On or before So long as the Closing DateCertificates of a Series shall be outstanding, the Company and CPS and ▇▇▇▇▇ shall cause will deliver to you the respective computer records annual statement of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy compliance delivered to the Trustee for pursuant to the benefit Pooling Agreement and the annual statement of a firm of independent public accountants furnished to the holders of Trustee pursuant to the Certificates in form and substance satisfactory Pooling Agreement as soon as such statements are furnished to each Underwriterthe Trustee.
Appears in 1 contract
Sources: Underwriting Agreement (Fund America Investors Corp Ii)
Covenants of the Company. The Company covenants with you, and agrees with each Underwriter participating in the several Underwriters thatoffering of Underwritten Securities, as follows:
(a) CPS The Company, subject to Section 3(b), will use its best efforts to cause comply with the Registration Statement, if not effective at the Execution Time, requirements of Rule 430B and any amendment thereto, to become effective will notify you as soon as reasonably practicable thereafter orpossible, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement or a new registration statement relating to the Securities and the Warrant Securities shall become effective, or any amendment or supplement to the Prospectus or any preliminary prospectus shall have been filed or become effective; filed, (ivii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment of to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Final Prospectus or any preliminary prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for any other additional information; , (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution such new registration statement or of any proceeding for that purpose; and (vi) order preventing or suspending the use of the receipt by CPS Prospectus or any preliminary prospectus, or of any notification with respect to the suspension of the qualification of the Certificates Underwritten Securities or the Warrant Securities for offering or sale in any jurisdiction 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 the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Underwritten Securities or the initiation Warrant Securities or if the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of any proceeding the 1933 Act Regulations. The Company 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 it 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, it will promptly file such purposeprospectus. CPS The Company will use its best make reasonable efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain the lifting thereof as soon as possible reasonably possible. The Company shall pay the withdrawal thereofrequired Commission filing fees relating to the Underwritten Securities and the Warrant Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Prior The Company will give you notice of its intention to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld file or delayed, a copy of prepare any post-- effective amendment to the Registration Statement, Statement or a new registration statement relating to the Securities or the Warrant Securities or any Rule 462(b) amendment or supplement to any preliminary prospectus (including the base prospectus included in the Original Registration Statement proposed or amendment thereto at the time it became effective) or to be filed or a copy of any document proposed the Prospectus, whether pursuant to be filed under the 1933 Act, the 1934 Act before or otherwise, and the termination Company will furnish you 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 you or counsel for the Underwriters shall reasonably object. If requested by the Underwriters, the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Underwritten Securities, in form and substance satisfactory to the Underwriters and attached as an exhibit to the applicable Terms Agreement, and shall, pursuant to paragraph (d)(5)(ii) of Rule 433, file such Final Term Sheet as an “issuer free writing prospectus” within two days of the later of the date such Final Term Sheet was established for all classes of the offering and the date of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusfirst use thereof.
(c) The Company has furnished or will deliver to, or upon the order of, to you and counsel for the Underwriters, from time 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 timebe incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts, and will also deliver to you, upon written request, a conformed copy of the Original Registration Statement as originally filed and any new registration statement containing the Prospectus and, in each case, any amendment thereto (without exhibits) for each of the Underwriters. The copies of the Original Registration Statement and any new registration statement and, in each case, any 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.
(d) The Company will deliver to each Underwriter, upon written request, as many copies of each preliminary prospectus and any Preliminary Final Prospectus amendment or supplement thereto as such Underwriter reasonably requests, and the Underwriters may reasonably requestCompany hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver tofurnish to each Underwriter, or upon the order ofwithout charge, the Underwriters during the period when delivery of a Final the 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, as many copies Act or the 1934 Act in connection with sales of the Final ProspectusUnderwritten Securities, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement Prospectus (including as amended or supplemented) as such number of copies of the exhibits filed therewith that Underwriter may reasonably be requested), including documents filed under request. Each preliminary prospectus and the 1934 Act Prospectus and deemed any amendment or supplement thereto furnished to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time will be identical to time reasonably request.the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(de) The Company will, and will cause the Trust to, comply with the 1933 Act, Act and the 1933 Act Regulations, Regulations and the 1934 Act and the 1934 Act Regulations, Regulations so as to permit the completion of the distribution of the Certificates Underwritten Securities as contemplated in this Agreement, the applicable Terms Agreement and in the Final Prospectus. If during the period in which at any time when a prospectus is required by law to be delivered (or but for the exception afforded by an Underwriter Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or dealer the 1934 Act in connection with sales of the sale of any CertificatesUnderwritten Securities, any event shall occur or condition shall exist as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Underwriters or counsel for the Company, 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 Company circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the UnderwritersRegistration Statement, it becomes necessary to file a new registration statement or to amend or supplement the Final 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 the Company is no longer eligible to use an automatic shelf registration statement), the Company will promptly prepare and file with the Commission, subject to Section 3(b) and Section 3(m), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, the Company will use its 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 Underwritten Securities) and the Company 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 Underwritten Securities (which completion you shall promptly communicate to the Company), 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 Underwritten 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 existing prevailing at the time the Final Prospectus is delivered to a purchaserthat subsequent time, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare notify you and file(ii) either (1) amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or cause to be prepared and filed, omission or (2) file a report with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which that corrects such untrue statement or omission and notify you in writing that such Issuer Free Writing Prospectus shall no longer be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesused.
(f) The Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities, the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, 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 reasonably designate. In each jurisdiction in which the Underwritten Securities, the Warrant Securities, if any, and the shares of Common Stock issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, 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 Underwritten Securities and the Warrant Securities, if any; provided, however, that the Company shall not invest, be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified or otherwise use the proceeds received by the Company from its sale to submit generally to service of the Certificates process in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actany jurisdiction in which it is not already so subject.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the The Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's timely file such reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, 1934 Act as are necessary in order to make generally available to its securityholders as soon as such statements practicable an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) for the purposes of, and reports are furnished to provide to the TrusteeUnderwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) The Company or CPS shall, from will use its best efforts to meet the date hereof through and including requirements to qualify as a “real estate investment trust” under the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and Code for the taxable year in which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any sales of the conditions contained in this Agreement; and all actions taken by the Company or CPS Underwritten Securities are to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriteroccur.
(i) The Company will cause Company, during the Trust period when a prospectus is required to make generally available to Certificateholders as soon as practicable, be delivered (or but no later than sixteen months after for the Effective Date, an earnings statement exception afforded by Rule 172 of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying 1933 Act Regulations would be required to be delivered) under the provisions of Section 11(a) 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 (including Rule 158 promulgated thereunder)within the time period prescribed by the 1934 Act and the 1934 Act Regulations.
(j) So long as any The Company will not, between the date of the Certificates are outstanding, applicable Terms Agreement and the Company will furnish Closing Time with respect to the Underwriters copies of all reports Underwritten Securities covered thereby, without your prior written consent, which shall not be unreasonably withheld, offer or other communications (financial sell, grant any option for the sale of, or otherwise) furnished or made available enter into any agreement to Certificateholderssell, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf Securities of the Trust same class or series or ranking on a parity with such Underwritten Securities (other than the Company with the Commission Underwritten Securities which are to be sold pursuant to such Terms Agreement) or, if such Terms Agreement relates to Underwritten Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, employee and director stock option plans or as partial or full payment for properties to be acquired by the Securities Exchange Act Company), except as may be otherwise provided in the applicable Terms Agreement. You may release us from the obligations of 1934, as amended, and (iithis Section 3(j) such additional information concerning the business and financial condition of the Company as the Underwriter may from in your sole discretion at any time to time reasonably requestwithout notice.
(k) On If the Preferred Shares or before the Closing DateDepositary Shares are convertible into shares of Common Stock or if Common Stock Warrants are issued, the Company will reserve and CPS and ▇▇▇▇▇ shall cause keep available at all times, free of preemptive or other similar rights, a sufficient number of shares of Common Stock or Preferred Shares, as the respective computer records case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Company and CPS and Samco relating to Preferred Shares or the Receivables to be marked to show Depositary Shares, as the Trustee's absolute ownership case may be, or upon exercise of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementCommon Stock Warrants.
(l) To If the extentUnderwritten Securities are Common Stock, if anyPreferred Shares or Depositary Shares, that the ratings provided with respect Company will use its best efforts to list such shares of Common Stock, Preferred Shares or Depositary Shares, as the Certificates by either case may be, on the New York Stock Exchange, Inc. or such other national securities exchange on which the Company’s shares of Common Stock are then listed. If the Preferred Shares or Depositary Shares are convertible into shares of Common Stock, the Company will use its best efforts to list the shares of Common Stock issuable upon conversion of the Rating Agencies is conditional upon Preferred Shares or Depositary Shares on the furnishing of documents New York Stock Exchange or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsnational securities exchange on which the Company’s shares of Common Stock are then listed.
(m) On The Company represents and agrees that, unless it obtains your prior consent, and each Underwriter represents and agrees that, unless it obtains your prior consent and the Closing Dateprior consent of the Company, it has not made and will not make any offer relating to the Underwritten 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 any Final Term Sheet. Any such free writing prospectus consented to by the Company and CPS shall cause you is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company 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 Certificate Insurer requirements of Rule 433 applicable to issue each and every Permitted Free Writing Prospectus, including timely filing with the Policy Commission where required, legending and record keeping.
(n) The date of any agreement by an Underwriter to act as principal or agent in connection with the Underwritten Securities is not more than three years subsequent to the Trustee for the benefit initial effective date of the holders Registration Statement. If, immediately prior to the third anniversary of the Certificates in form and substance satisfactory to each Underwriter.initial effective date of the Registration Statement, any of such Underwritten Securities remain unsold
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatUnderwriter as follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriter conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Underwriter orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Underwriter sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the UnderwritersUnderwriter and, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters Underwriter may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon furnish the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many Underwriter with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, Supplemented Prospectus relating to the offering of the Senior Notes in such quantities as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters Underwriter may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by the Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriter, shall occur, which in the judgment opinion of the Company or of Underwriter's counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriter to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriter a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time when the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleading, or, if it misleading or which will effect any other necessary compliance. In case the Underwriter is necessary at required to deliver a prospectus in connection with the sale of any time to amend or supplement Senior Notes after the Final Prospectus to comply with any law or to file under expiration of the 1934 Act any document which would be deemed to be incorporated by reference period specified in the Registration Statement to comply with the 1933 Act or the 1934 Actpreceding sentence, the Company will promptly notify each Company, upon the request of the Underwriters and Underwriter, will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment furnish to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and fileUnderwriter, or cause to be prepared and filed, with the Commission (at the expense of the CompanyUnderwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) an appropriate filing of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the 1934 Act which shall be incorporated by reference in and the Final Prospectus so rules and regulations thereunder; provided, that the Final Prospectus as so amended Company shall not file such documents or supplemented will not, in amendments without also furnishing copies thereof prior to such filing to the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriter and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(ec) The Company will cooperate endeavor, in cooperation with the Underwriters in endeavoring Underwriter, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Underwriter may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of this Agreement, the Act Company will not, without the Underwriter's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (including Rule 158 promulgated thereunderexcept for the Senior Notes issued pursuant to this Agreement).
(jf) So long As soon as any practicable after the date of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersthis Agreement, and deliver in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant and to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as advise the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementto confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The 5.1 So long as no Event of Default shall have occurred and be continuing, the Company covenants and agrees may, in any lawful manner not inconsistent with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time provisions of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Security Agreement and the Final Prospectus. If during Note Purchase Agreement, use, control and manage the period Collateral in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale operation of any Certificatesits business, any event shall occur as a result of whichand receive and use the income, revenue and profits arising therefrom and the proceeds thereof, in the judgment same manner and with the same effect as if this Security Agreement had not been made; provided, however, that without the written consent of the Company or in the reasonable opinion Purchasers holding at least a majority of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light aggregate principal balance of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actall Notes then outstanding, the Company will promptly notify each not sell, assign or otherwise dispose of, grant any option with respect to, or mortgage, pledge, grant any lien with respect to or otherwise encumber any of the Underwriters Collateral or any interest therein, except for the security interest created in favor of the Collateral Agent hereunder and except as may be otherwise expressly permitted in accordance with the terms of this Security Agreement and the Note Purchase Agreement.
5.2 So long as no Event of Default shall have occurred and be continuing, the Company shall be entitled to exercise all voting rights pertaining to the Shares, and for that purpose the Collateral Agent will promptly either (i) prepare execute and file, deliver or cause to be prepared executed and filed, with the Commission an appropriate amendment delivered to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Company all such proxies and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions other instruments as the Underwriters Company may designate and will maintain reasonably request in writing to enable the Company to exercise such qualifications in effect so long as required for the distribution of the Certificatesvoting rights; provided, except however, that the Company will not be obligated cast any vote, give any consent, waiver or ratification, or take or fail to qualify the Certificates take any action in any jurisdiction in which such qualification manner that would, or could reasonably be expected to, violate or be inconsistent with any of the terms of this Security Agreement or the Note Purchase Agreement, or have the effect of impairing the position or interests of the Collateral Agent or any Purchaser.
5.3 So long as no Event of Default shall have occurred and be continuing (or would require the Company to qualify to do business occur as a foreign corporationresult thereof), file a general or unlimited consent and except as provided otherwise herein, all interest, income, dividends, distributions and other amounts payable in cash in respect of the Shares may be paid to service and retained by the Company; provided, however, that all such interest, income, dividends, distributions and other amounts shall, at all times after the occurrence and during the continuance of process or subject itself an Event of Default, be paid to taxation in any such jurisdiction to which it is not subject and will arrange the Collateral Agent for the determination ratable benefit of all the Purchasers and retained by it as part of the legality Collateral. The Collateral Agent shall also be entitled at all times (whether or not during the continuance of an Event of Default) to receive directly, and to retain as part of the Certificates for purchase by institutional investors. The Company willCollateral, from time (a) all interest, income, dividends, distributions or other amounts paid or payable in cash or other property in respect of the Shares in connection with the dissolution, liquidation, recapitalization or reclassification of the capital of the Subsidiary to timethe extent representing an extraordinary, prepare and file such statementsliquidating or other distribution in return of capital, reports(b) all additional equity interests or other securities or property (other than cash) paid or payable or distributed or distributable in respect of the Shares in connection with any noncash dividend, distribution, return of capital, spin-off, stock split, split-up, reclassification, combination of shares or similar rearrangement, and (c) without affecting any restrictions against such actions contained in this Security Agreement, all additional capital stock, equity interests or other documents as are securities or may be required to continue such qualifications property (including cash) paid or payable or distributed or distributable in effect for so long a period as the Underwriters may reasonably request for distribution respect of the Certificates.
(f) The Company shall not investShares in connection with any consolidation, merger, exchange of securities, liquidation or otherwise use the proceeds other reorganization. All interest, income, dividends, distributions or other amounts that are received by the Company from its sale in violation of the Certificates provisions of this Section shall be received in such a manner trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of the Company and shall be forthwith delivered to the Collateral Agent as would require Collateral in the Company, CPS or the Trust to register same form as an investment company under the 1940 Actso received (with any necessary endorsements).
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, 5.4 If the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through at any time and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time after the date hereof, acquire any additional capital stock or other equity interests in the Subsidiary, the same shall be automatically deemed to be Collateral, and to be pledged to the Collateral Agent pursuant to Section 2.1, and the Company will forthwith pledge and deposit the same with the Collateral Agent for the ratable benefit of the Purchasers and deliver to the Collateral Agent any certificates or instruments therefor, together with the endorsement of the Company and undated stock powers or other necessary instruments of transfer or assignment, duly executed in blank, to the Collateral Agent for the ratable benefit of the Purchasers, together with such other certificates and instruments as the Collateral Agent may reasonably request and which (including UCC financing statements or appropriate amendments thereto).
5.5 Unless the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in shall have obtained the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any written consent of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale Purchasers holding at least a majority of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.aggregate principal balance of all Notes then outstanding:
(ia) The Company will cause the Trust Shares pledged by it hereunder to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement constitute at all times 100% of the Trust covering outstanding capital and equity interests in the Subsidiary, such that the Subsidiary shall be a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) wholly-owned subsidiary of the Act Company; and (including Rule 158 promulgated thereunder).
(jb) So long as any of the Certificates are outstanding, the The Company will furnish not cause or permit the Subsidiary to issue or sell any new capital stock in the Subsidiary, any warrants, options or rights to acquire any such capital stock, or other equity interests in the Subsidiary of any nature to any person, firm or entity other than the Company, or cause, permit or consent to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking admission of any other actions by the Company person, firm or CPSentity as a stockholder, CPS shall, partner or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit member of the holders of the Certificates in form and substance satisfactory to each UnderwriterSubsidiary.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Affinity Technology Group Inc)
Covenants of the Company. 3.1. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause all Ordinary Shares that may be issued upon the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness exercise of the Registration Statement in reliance rights represented by this Warrant shall, upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing issuance and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request payment therefore by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; Holder, be duly authorized, validly issued, fully paid and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.nonassessable;
(b) Prior during the period within which this Warrant may be exercised, it will at all times have authorized and reserved a sufficient number of Ordinary Shares to provide for the filing thereof with the Commission, CPS will submit to each exercise of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates rights represented by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.this Warrant;
(c) The Company will deliver to, if any Ordinary Shares reserved or upon to be reserved to provide for the order of, the Underwriters, from time to time, as many copies exercise of this Warrant require registration with or approval of any Preliminary Final Prospectus governmental or self-regulatory authority under any federal or state law or stock exchange or NASDAQ rule before such Shares may be validly issued, then it shall in good faith and as the Underwriters may reasonably request. The Company will deliver to, expeditiously as possible endeavor to secure such registration or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplementedapproval, as the Underwriters case may reasonably request. The Company will deliver to be, all as set forth in the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.Purchase Agreement;
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as have filed a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee registration statement pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each requirements of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any Section 12 of the conditions contained in this Agreement; Securities and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act"), and (ii) such additional information concerning or a registration statement pursuant to the business and financial condition requirements of the Securities Act of 1933, as amended (the "Securities Act"), the Company as shall comply with the Underwriter may reporting requirements of Sections 13 and 15(d) of the Exchange Act and shall comply with all other public information reporting requirements the securities and exchange commission (including Rule 144 promulgated by such commission under the Securities Act) from time to time reasonably request.in effect and relating to the availability of an exemption from the Securities Act for the sale of any restricted securities; and
(ke) On it shall not, by amendment to its Articles of Association (whether by way of merger, operation of law, or before otherwise) or through other reorganization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities, agreement or any other voluntary action, avoid or seek to avoid the Closing Date, observance or performance of any of the terms to be observed or performed hereunder by the Company and CPS shall at all times in good faith assist in the carrying out of all the provisions of this Warrant. Any successor to the Company shall agree in writing, as a condition to such succession, to carry out and ▇▇▇▇▇ shall cause observe the respective computer records obligations of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided hereunder with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsWarrants.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (On Track Innovations LTD)
Covenants of the Company. (a) The Company covenants and agrees with the several Underwriters thatas follows:
(ai) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (A) prepare and timely file with the Commission under Rule 424(b) of the Rules a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination 430A of the offering of the Certificates, CPS will Rules; and (B) not file with the Commission any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of which the Underwriters shall not previously have been advised and furnished with a copy for its review a reasonable period of time prior to the proposed filing and will not file any such proposed amendment or supplement as to which any of the Underwriters reasonably objects and shall not have given their consent or which is not in compliance with the 1933 Securities Act Regulations. CPS will or the Rules.
(ii) The Company shall promptly advise the Underwriters Representatives in writing (iA) when the Registration Statement, if not any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed or become effective; filed, (ivB) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or the institution or threatening of any proceeding for that purpose; purpose and (viD) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. CPS will The Company shall use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible the withdrawal thereof.
(biii) Prior If, at any time when a prospectus relating to the filing thereof Shares is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, CPS will submit subject to each paragraph (i) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Time occurs (or 90 days if such 12-month period coincides with the Company’s fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(v) The Company shall furnish to the Representatives and counsel for the Underwriters, for its approval after reasonable notice thereofwithout charge, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act thereto) and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulationsthereof and, so long as to permit the completion delivery of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with may be required by the sale Securities Act or the Rules, as many copies of any Certificatespreliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. If applicable, any event shall occur as a result the copies of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement and Prospectus and each amendment and supplement thereto furnished to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause be identical to be prepared and filed, the electronically transmitted copies thereof filed with the Commission an appropriate amendment pursuant to ▇▇▇▇▇, except to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated extent permitted by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.Regulation S-T.
(evi) The Company will shall cooperate with the Underwriters Representatives and their counsel in endeavoring to qualify the Certificates Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Underwriters Representatives may designate and will shall maintain such qualifications in effect so long as required for the distribution of the CertificatesShares; provided, except however, that the Company will shall not be obligated required in connection therewith, as a condition thereof, to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process in any jurisdiction or subject itself to taxation as doing business in any such jurisdiction jurisdiction.
(vii) The Company, during the period when the Prospectus is required to which it is not subject be delivered under the Securities Act and the Rules or the Exchange Act, will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, all reports and other documents as are or may be required to continue such qualifications in effect for so long a period as be filed with the Underwriters may reasonably request for distribution Commission pursuant to Section 13, 14 or 15 of the CertificatesExchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(fviii) The Without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co, LLC, for a period of 360 days after the date of this Agreement, the Company and each of its individual directors and executive officers shall not investissue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise use the proceeds received by dispose of, directly or indirectly, any equity securities of the Company from its sale (or any securities convertible into, exercisable for or exchangeable for equity securities of the Certificates in such a manner as would require Company), except for the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement issuance of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee Shares pursuant to the Pooling Registration Statement and Servicing Agreement, as soon as such statements and reports are furnished the issuance of shares pursuant to the Trustee.
(h) The Company Company’s existing stock option plan or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs bonus plan as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information described in the Registration Statement and the Final Prospectus Prospectus. In the event that during this period, (A) any shares are issued pursuant to the Company’s existing stock option plan or bonus plan that are exercisable during such 360 day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 360 period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 360 days after the date of this Agreement, such person will not, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co, LLC, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(ix) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and in order by the Nasdaq Global Market or NYSE Alternext (including any required registration under the Exchange Act).
(x) Prior to evidence the accuracy Firm Shares Closing Date, the Company will issue no press release or completeness other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the conditions offering of the Shares without the prior written consent of the Representatives unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law.
(xi) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus.
(xii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(xiii) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(xiv) Upon the request of any Underwriters, the Company shall furnish to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriters for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that the License shall be used solely for the purpose described above and is granted without any fee and may not be assigned or transferred.
(A) In accordance with the requirements of Sections 802 and 803 of the Company Guide, subject to the exemptions contained in Section 809 of the Company Guide and consistent with the exemptions afforded in Rule 10A-3 under the Exchange Act, the Company will comply with the board independence composition requirement imposed by NYSE Alternext;
(B) Subject to the exemptions contained in Section 809 of the Company Guide and consistent with the exemptions afforded in Rule 10A-3 under the Exchange Act, the Company will maintain an audit committee that satisfies the audit committee requirements set forth in Section 803 of the Company Guide; and
(C) Subject to the exemptions contained in Sections 805 and 809 of the Company Guide and consistent with the exemptions afforded in Rule 10A-3 under the Exchange Act, the Company will maintain a compensation committee comprised of at least three members, all of whom are independent as defined in Section 803A of the Company Guide.
(b) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement as listed below: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each preliminary prospectus, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 4(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each preliminary prospectus, the Prospectus and all actions taken amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of FINRA in connection with its review of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for quotation on the Nasdaq Global Market or NYSE Alternext; (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company or CPS to authorize the sale Underwriters; and (viii) the performance of the Certificates shall be reasonably satisfactory in form Company’s obligations under Sections 4(a), 6(a) and substance 7. Subject to each Underwriterthe provisions of Section 7, the Underwriters agree to pay, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriters.
(a) (i) The Company will cause represents and agrees that, without the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement prior consent of the Trust covering Representatives, it has not made and will not make any offer relating to the Shares that would constitute a period “free writing prospectus” as defined in Rule 405 under the Securities Act; any such free writing prospectus the use of at least twelve consecutive months beginning after such Effective Date which has been consented to by the Company and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).Representatives is listed on Schedule III hereto;
(jii) So long as The Company has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any of the Certificates are outstandingIssuer Free Writing Prospectus, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company including timely filing with the Commission pursuant to or retention where required and legending; and the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating avoid a requirement to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent file with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of Commission any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.electronic road show;
Appears in 1 contract
Sources: Underwriting Agreement (Changing World Technologies, Inc.)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts The Registration Statement and any amendments thereto filed on or prior to cause the Registration Statement, if not effective at the Execution Timedate hereof have become effective, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b), or Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a Final Prospectus containing information previously omitted at term sheet that complies with the time requirements of effectiveness of Rule 434 (the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus"Term Sheet") to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of and provide the Underwriters a copy for its review with copies of such filings prior to filing and their use. The Company will not file any notify you promptly (and, if requested by you, will confirm such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not notice in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing) (i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (iii) of the Company's intention to file or prepare any amendments to the Registration Statement (including pursuant to Rule 462(b)), the Term Sheet or any supplement, revision or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; and the Company shall make every effort to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS possible. The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld at any time file or delayed, a copy of make any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or a copy Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement or, file any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters Exchange Act, if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusProspectus to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(cb) The Company will deliver to, or upon shall comply with the order of, Securities Act and the Underwriters, from time Exchange Act to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies permit completion of the Final Prospectusdistribution as contemplated in this Agreement, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewiththe Prospectus. If, and will deliver at any time when a prospectus relating to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus Shares is required by law to be delivered by an Underwriter under the Securities Act or dealer the Exchange Act in connection with the sale sales of any CertificatesShares, any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the reasonable judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time of delivery to the Final Prospectus is delivered to a purchaser, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Final Prospectus or Registration Statement to comply with any law the Securities Act or the Rules and Regulations, or to file under the 1934 Exchange Act so as to comply therewith any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActProspectus or in any amendment thereof or supplement thereto, the Company will notify you promptly notify and prepare and file with the Commission, subject to the second paragraph of Section 4(a) hereof, an appropriate amendment or supplement (in form and substance reasonably satisfactory to you) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company has delivered to each of the Underwriters and Underwriters' Counsel a signed copy of the Registration Statement, including all consents and exhibits filed therewith and all documents incorporated by reference therein and will promptly either (i) prepare deliver to each of the Underwriters and fileUnderwriters' Counsel all amendments thereto, or cause and the Company will promptly deliver to be prepared and filedeach of the Underwriters such number of copies of any preliminary prospectus, with the Commission an appropriate amendment to Prospectus, the Registration Statement or supplement Statement, and all amendments of and supplements to the Final Prospectus or (ii) prepare such documents, if any, and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be all documents incorporated by reference in the Final Registration Statement and Prospectus so that or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(d) The Company shall promptly deliver to each of the Underwriters and to Underwriters' Counsel copies of the Preliminary Prospectus, and the Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act. The Company shall also furnish to each of the Underwriters copies of the Final Prospectus as so amended or supplemented will not, in the light requested by any of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriters.
(e) The Company will cooperate use its best efforts, in cooperation with you, at or prior to the Underwriters in endeavoring time of effectiveness of the Registration Statement, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as the Underwriters you may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesprocess.
(f) The Company will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not later than fifteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and the Subsidiaries (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall comply with the requirements of Section 11(a) of the Securities Act and the Rules and Regulations (including Rule 158) and will advise you in writing when such statement has been so made available.
(g) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(h) During the period of 90 days from the date of the Prospectus, the Company will not, directly or indirectly, without your prior written consent, issue, sell, offer or agree to sell, grant any option for the sale of or rights in, pledge, loan, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h) under the Exchange Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or interest therein of the Company or of any of the Subsidiaries, and the Company will obtain the undertaking of each of its officers and directors and such of its shareholders as have been heretofore designated by you and listed on Schedule III attached hereto not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon (i) the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof; (ii) the exercise of currently outstanding options; (iii) the exercise of currently outstanding warrants; and (iv) the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof.
(i) During the period of five years from the effective date of the Registration Statement, the Company will furnish to you copies of all non-public reports or other communications (financial or other) furnished to security holders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request.
(j) The Company will apply the net proceeds it receives from the sale of the Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will use its best efforts to list for quotation, subject to notice of issuance, the Shares on Nasdaq National Market.
(l) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder.
(m) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Shares in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(in) The Company will cause maintain a transfer agent and, if necessary under the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement jurisdiction of incorporation of the Trust covering Company, a period of at least twelve consecutive months beginning after such Effective Date and satisfying registrar for the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Common Stock.
(jo) So long as The Company will not take or permit any of the Certificates are outstandingits Subsidiaries to take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Company will furnish to stabilization or manipulation of the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies price of any reports and financial statements filed by or on behalf securities of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestCompany.
(kp) On or before The Company shall allow the Closing Date, the Company Underwriters to conduct and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, complete all "due diligence" investigations that the ratings provided with respect Underwriters may reasonably require to fulfill the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsUnderwriters' obligations as underwriters.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several U.S. Underwriters that:
(a) CPS If the Registration Statement has not yet been declared effective the Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, amendments thereto to become effective as soon promptly as reasonably practicable thereafter orpossible, and if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the U.S. Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the U.S. Prospectus containing information previously omitted at (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing period and will not provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance a term sheet that complies with the 1933 Act Regulations. CPS requirements of Rule 434.
(b) The Company will promptly advise the Underwriters notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final U.S. Prospectus or for any other additional information; , (viii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the U.S. Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for that purpose; proceedings therefor, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates U.S. Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts to prevent If the issuance of any such Commission shall propose or enter a stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Acttime, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.every reasonable effort
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Healthcare Recoveries Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in If Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon (properly completed if Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus430A has been used) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) within the prescribed time period and will provide evidence satisfactory to the Representatives of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(iiib) when, prior Prior to termination and through the completion of the offering distribution of the CertificatesShares, any amendment to the Registration Statement shall have been filed or become effective; Company will notify you promptly (ivand, if requested by the Representatives, will confirm such notice in writing) (i) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vii) of the Company’s intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; the Company shall make every reasonable effort to avoid the issuance of any such stop order, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts If the Commission shall propose or enter a stop order at any time, the Company will, prior to and through the completion of the distribution of the Shares, make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) possible. Prior to and through the filing thereof with the Commission, CPS will submit to each completion of the Underwritersdistribution of the Shares, for its approval after reasonable notice thereof, such approval the Company will not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or a copy of Rule 434) that differs from the preliminary prospectus supplement filed with the Commission on December 14, 2004 or file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which the Representatives shall reasonably object in writing after being timely furnished in advance a copy thereof. The Company will provide the Representatives with copies of all such amendments, filings and other documents a sufficient time prior to any filing or Final Prospectusother publication thereof to permit the Representatives a reasonable opportunity to review and comment thereon.
(c) The Company will deliver tocooperate with the Representatives in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of the qualification requirements of) the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or upon the order of, the Underwritersto file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as many copies of any Preliminary Final Prospectus are or may be required to continue such qualifications in effect for so long a period as the Underwriters Representatives may reasonably requestrequest for distribution of the Shares. The Company will deliver shall advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or upon trading in any jurisdiction or any initiation of threat of any proceeding for any such purpose, and in the event of the issuance of any order ofsuspending such qualification, registration or exemption, the Underwriters during Company shall use its best efforts to obtain the period when withdrawal thereof at the earliest possible moment.
(d) The Company consents to the use and delivery of a Final the Preliminary Prospectus is required under by the 1933 Act, as many copies Underwriters in accordance with Rule 430 and Section 5(b) of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. Securities Act.
(e) The Company will deliver to maintain in the Underwriters at or before the Closing Date, two Company’s files manually signed copies of the Registration Statement Statement, as initially filed and all amendments thereto thereto, including all consents and exhibits filed therewith, and for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York City time, on the Underwriters may business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(df) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Shares as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time prior to the consummation of the Offering to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable the law.
(eg) The Company will cooperate make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the date of the Prospectus, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the date of the Prospectus, which earnings statement shall comply with the Underwriters in endeavoring to qualify requirements of Section 11(a) of the Certificates for sale under Act and Rule 158 of the laws of such jurisdictions as the Underwriters may designate Rules and Regulations, and will maintain advise you in writing when such qualifications in effect statement has been so long made available.
(h) Prior to the Closing Date, the Company will furnish to the Underwriters, as required for soon as they have been prepared by or are available to the distribution Company, a copy of any unaudited interim financial statements of the CertificatesCompany for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(i) No offering, except sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement (the “Lock-Up Period”), directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ▇▇▇▇▇▇ Brothers Inc., which consent shall not be unreasonably withheld; provided, however, that the Company may issue (i) shares of its Common Stock upon the exercise of options, (ii) shares of its Common Stock pursuant to stock grants or (iii) options to purchase its Common Stock, to directors, officers and employees of the Company, issued pursuant to employee or director benefit plans, stock option plans or the employee compensation plans. Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up 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 Lock-Up Period, the Company announces that it will not release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(i) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless ▇▇▇▇▇▇ Brothers Inc. waives, in writing, such extension.
(j) The Company, during the period when the Prospectus is required to be obligated delivered under the Securities Act or the Exchange Act, will file all documents required to qualify be filed with the Certificates in Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby (including any jurisdiction in which such qualification would require extensions permitted by the Rules and Regulations thereunder).
(k) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange.
(l) The Company has caused each executive officer and director of the Company to qualify furnish to do business as you, on or prior to the date of this agreement, a foreign corporation, file a general letter or unlimited consent to service letters substantially in the form of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for Exhibit B hereto (“Lockup Agreements”).
(m) The Company shall apply the determination net proceeds of its sale of the legality Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare Shares and file such statements, reports, and other documents the application of the proceeds therefrom as are or may be required to continue such qualifications in effect for so long a period as accordance with Rule 463 under the Underwriters may reasonably request for distribution of the CertificatesAct.
(fn) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Shares in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Act▇▇▇▇ ▇▇▇.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(io) The Company will cause maintain a transfer agent and, if necessary under the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement jurisdiction of incorporation of the Trust covering Company, a period of at least twelve consecutive months beginning after such Effective Date and satisfying registrar for the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Common Stock.
(jp) So long as The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies price of any reports and financial statements filed by or on behalf securities of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestCompany.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Equity Underwriting Agreement (Pinnacle Entertainment Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during wi▇▇ ▇▇▇▇▇s of each amendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters endeavor, in endeavoring co▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇he Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than ▇▇▇ ▇▇rst day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Representative of such filing and to confirm such advice in writing.
(f) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingthis Agreement, the Company will furnish not, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Underwriters copies of all reports Senior Notes (except for the Senior Notes issued pursuant to this Agreement and the Company's Series W 6% Senior Notes due August 15, 2044). The Representative agrees that commercial paper or other communications (financial or otherwise) furnished or made available debt securities with scheduled maturities of less than one year are not subject to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestthis Section 3(f).
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees Zunicom, as applicable, covenant and agree with the several Underwriters that:
(a) CPS If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, amendments thereto to become effective as soon promptly as reasonably practicable thereafter orpossible, and if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Final Prospectus is otherwise required under Rule 424(b) a Final Prospectus containing information previously omitted at or Rule 434, the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or any Preliminary Final Prospectus) to Rule 434 within the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing prescribed time period and will not provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance a term sheet that complies with the 1933 Act Regulationsrequirements of Rule 434. CPS The Company will promptly advise the Underwriters notify you immediately (and, if requested by you, will confirm such notice in writing) (i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (viii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Final Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for that purpose; proceedings therefore, (v) of the receipt of any comments from the Commission and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible possible. The Company will not file any amendment to the withdrawal Registration Statement or any amendment of or supplement to the Final Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or after the effective date of the Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(b) Prior If at any time when a prospectus relating to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus Shares is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any Certificates, Securities Act any event shall occur have occurred as a result of whichwhich the Final Prospectus as then amended or supplemented would, in the judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Securities Act or the 1934 ActSecurities Act Regulations, the Company will notify you promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Underwriters such number of copies of any preliminary prospectus, the Final Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or supplement prior to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense time of effectiveness of the Company) an appropriate filing Registration Statement, to qualify the Shares for offering and sale under the 1934 Act which shall be incorporated by reference in securities laws relating to the Final Prospectus so that the Final Prospectus as so amended offering or supplemented will not, in the light sale of the circumstances when it is Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so delivered, long as required for the distribution thereof; except that in no event shall the Company be misleading, obligated in connection therewith to qualify as a foreign corporation or so that the Final Prospectus will comply with applicable lawto execute a general consent to service of process.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available (within the meaning of Section 11(a) of the Securities Act) to Certificateholders its security holders and to you as soon as practicable, but no not later than sixteen months 45 days after the Effective Dateend of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earnings statement (in form complying with the provisions of Rule 158 of the Trust Securities Act Regulations) covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) effective date of the Act (including Rule 158 promulgated thereunder)Registration Statement.
(jf) So long as Other than Zunicom’s sale of Shares hereunder, for a period of twelve (12) months after the Effective Date, Zunicom will not, and will not permit any of its affiliates (which, for this purpose, shall not include the Company), directly or indirectly, to (i) offer, pledge, sell, or 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 any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (ii) enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the Certificates economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to do any of the foregoing, without the prior written consent of the Representatives, except that sales or transfers may be made in private transactions which are outstandingexempt from registration under the Securities Act, if the proposed purchaser or transferee agrees to be bound by the provisions hereof. The Company will obtain the undertaking of each of its officers and directors and such of its other stockholders as have been heretofore designated by you and listed in Schedule II-A attached hereto not to engage in any of the aforementioned transactions or to announce their intention to do any of the foregoing on their own behalf.
(g) During a period of two years from the Effective Date, the Company will furnish to the Underwriters you copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are availableall reports to its stockholders; and (ii) all reports, copies of any reports financial statements and financial proxy or information statements filed by or on behalf of the Trust or the Company with the Commission pursuant to or any national securities exchange.
(h) The Company will apply its net proceeds from the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition sale of the Shares as set forth under the caption “Use of Proceeds” in the Final Prospectus.
(i) The Company as will use its best efforts to cause the Underwriter may from time Shares to time reasonably requestbe listed on the American Stock Exchange.
(j) In the event the Common Stock becomes delisted on the American Stock Exchange, then the Company will register and remain covered by Standard & Poor's Corporation Records Guide or another recognized securities manual for a period of three years commencing on the Closing Date.
(k) On The Company shall at all times prior to the completion of the Offering allow, or before take such actions as are necessary to facilitate, the Closing DateUnderwriters and their representatives to conduct all due diligence on the Company and the Shares which the Underwriters may reasonably require.
(l) The Company shall maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock and to cause such transfer agent to furnish the Underwriters a duplicate copy of the daily transfer sheets prepared by the transfer agent during the 12-month period commencing on the effective date of the Registration Statement and instruct the transfer agent to timely provide, upon the request of the Underwriters, from time to time, duplicate copies of such transfer sheets and/or a duplicate copy of a list of stockholders, all at the Company's expense, for a period of four years after such 12-month period.
(m) At the time of purchase of the Firm Shares, the Company agrees to sell to Ladenburg and CPS and Wund▇▇▇▇▇▇ ▇▇▇urities, Inc. (“Wund▇▇▇▇▇▇”) ▇or a total purchase price of $100.00, warrants (the “Warrant” or “Warrants”) entitling Ladenburg and Wund▇▇▇▇▇▇ ▇▇ its or their assigns to purchase up to 10% of the sum of the Firm Shares and the Additional Shares at a price equal to 120% of the public offering price. The Warrants shall cause be exercisable commencing 180 days after the respective computer records date of purchase and shall expire five years from the date of purchase. The Warrants shall contain cashless exercise provisions and the Additional Shares (using a 20 trading day volume weighted average price to determine the market price of the Common Stock, upon the exercise of the Warrants), and anti-dilution provisions as are acceptable to Ladenburg and Wund▇▇▇▇▇▇.
(n) The Company hereby agrees to afford Ladenburg the right, but not the obligation, commencing on the Effective Date and terminating two years thereafter, to sell for the account of the pre-Offering shareholders of the Company who will own one percent (1%) or more of the outstanding shares of Common Stock immediately after the Offering is complete at the effective date (collectively, the “144 Sellers”) any securities sold pursuant to Rule 144 under the Securities Act, and the Company shall require each of the 144 Sellers to execute an agreement containing the terms contained in this subsection. Each of the 144 Sellers agrees to give notice to Ladenburg of his intent to offer for sale of any shares of Common Stock. Ladenburg will have 48 hours excluding Saturdays, Sundays and holidays when the American Stock Exchange is closed (“48 Hours”) to make an offer for the entire number of shares covered by the notice. Assuming that Ladenburg make such an offer within 48 Hours, the 144 Seller will have 48 Hours to sell the entire number of shares through or to another broker-dealer for the net price which is better than the price offered by the Ladenburg (the “Net Price”). If he does so, then Ladenburg shall have no rights to purchase for its account or sell for the account of the 144 Seller the shares covered by the notice. The Net Price shall be adjusted during the 48 Hours by the amount of any change upwards or downwards in the last sales price. If the 144 Seller gives notice to Ladenburg that it is unable to obtain a better Net Price, Ladenburg may purchase all the shares contained in the notice for its own account or sell all of the shares contained in the notice for the account of the 144 Seller at the Net Price, subject to adjustment as provided in this subsection, or the 144 Seller may thereafter sell such shares through another broker-dealer.
(o) In the event the Department of Corporate Financing of the National Association of Securities Dealers, Inc. (“NASD”) shall determine that any common stock of Zunicom or the Company or stock options issued to, or financial consulting or other agreements of Zunicom or the Company, with any person or persons who are unaffiliated with the Underwriters are nevertheless considered underwriting compensation, the Company and Zunicom will take such action as the NASD may require to prevent such stock options or agreements from having any adverse effect on the Underwriters allowable compensation. In the event that the NASD still deems the Underwriters compensation to be unacceptable, the Underwriters shall, in their sole discretion, make such further adjustments to the form of their compensation as they deem necessary to obtain NASD clearance, so long as such compensation adjustments do not increase the amount of total compensation provided for in this Agreement. 15
(p) Each of the Company and CPS Zunicom covenant and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership agree that as long as any of the Receivables, and from and after the Closing Date neither assets of the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than are pledged or hypothecated or otherwise serve as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect security for insurance bonds issued to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders Zunicom, or as long as any of the Certificates assets of the Company are hypothecated or serve as collateral for any liabilities of Zunicom, then in form either event, all proceeds received by Zunicom from the sale of any equity securities or other securities convertible into, exercisable for, or exchangeable for equity securities of the Company or Zunicom, as the case may be shall be used to first refinance any indebtedness by Zunicom so as to release the assets of the Company as collateral for such liability or otherwise release the Company from any liability for the indebtedness of Zunicom and substance satisfactory second, such proceeds shall be used to each Underwritercause any bonding companies to release the assets of and the Company from any contingent liabilities thereunder.
Appears in 1 contract
Sources: Underwriting Agreement (Universal Power Group Inc.)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that▇▇▇▇▇▇▇▇ as follows:
(a) CPS For so long as ▇▇▇▇▇▇▇▇ owns or has the right to purchase any Investment Securities and for a period of one (1) year thereafter, the Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending maintain the effectiveness of the Registration Statement Statement; (ii) maintain the eligibility of the Common Stock for listing on the NYSE or any National Exchange; (iii) regain the institution eligibility of the Common Stock for listing or quotation on all markets and exchanges in the event that the Common Stock is delisted by any proceeding for that purposeapplicable market or exchange; (iv) obtain a listing on a National Exchange if the Common Stock is delisted by the NYSE; and (viv) cause the representations and warranties contained in Section 4 to be and remain true and correct, except those representations and warranties which address matters only as of the receipt by CPS a particular date, which shall be true and correct as of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereofdate.
(b) Prior If a Restatement (as defined in the Certificate of Rights and Preferences) occurs, the Company shall deliver to the filing thereof with the Commission, CPS will submit to each ▇▇▇▇▇▇▇▇ a Restatement Notice within three (3) Business Days of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusRestatement.
(c) The Company will deliver toprovide ▇▇▇▇▇▇▇▇ with a reasonable opportunity, or upon which shall not be less than one (1) full Business Day, to review and comment on any public disclosure by the order ofCompany of information regarding this Agreement and the transactions contemplated hereby, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestpublic disclosure.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is make all filings required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment respect to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawtransactions contemplated hereby.
(e) The Company will cooperate comply with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate terms and will maintain such qualifications in effect so long as required for the distribution conditions of the Certificates, except that Certificate of Rights and Preferences and the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesWarrant.
(f) The For so long as ▇▇▇▇▇▇▇▇ owns any Investment Securities, within five (5) Business Days after the filing of each of its quarterly reports on Form 10-Q with the SEC, the Company shall not invest, or otherwise use deliver to ▇▇▇▇▇▇▇▇ a certificate of the proceeds received by Chief Executive Officer and Chief Financial Officer of the Company from its sale stating that, based on their knowledge, the final consolidated unaudited financial statements including the footnotes thereto contained therein fairly present in all material respects the financial condition in conformity with accounting principles generally accepted in the United States, results of operations and cash flows of the Certificates in such a manner Company as would require of and for the Company, CPS or the Trust to register as an investment company under the 1940 Actperiods presented therein.
(g) Until The Company shall use its commercially reasonable efforts to cause the retirement of the Certificates, Common Shares to be eligible for book-entry transfer through The Depository Trust Company (or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, any successor thereto) as soon as practicable after the date of the January 29, 2009 Agreement and thereafter to use its commercially reasonable efforts to maintain such statements and reports are furnished to the Trusteeeligibility.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or shall at all times reserve for issuance such number of its counsel such additional documents and information regarding each shares of them and their respective affairs Common Stock as each Underwriter may shall from time to time reasonably request be sufficient to satisfy its obligation to deliver such shares under this Agreement, the Certificate of Rights and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement Preferences and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each UnderwriterWarrant.
(i) The Unless expressly waived by ▇▇▇▇▇▇▇▇, the Company will cause shall deliver an Outstanding Share Notice to ▇▇▇▇▇▇▇▇ on or before the Trust tenth (10th) day of any calendar month for which an Outstanding Share Notice is required to make generally available be delivered pursuant to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder6(b).
(j) So long as The Company shall cooperate in good faith to assist with any assignment, pledge, hypothecation or transfer of the Certificates are outstandingInvestment Securities, including without limitation making its representatives available for discussions with lenders and assignees and promptly processing requests to retitle the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestInvestment Securities.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Amended and Restated Agreement (Raser Technologies Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thateach Agent as follows:
(a) CPS The Company will use its best efforts to cause the Registration Statementnotify each Agent and Kramer Levin Naftalis & Frankel LLP, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(bAgent counsel ("Agent Counsel") a Final Prospectus containing information previously omitted at the time ▇▇▇▇▇▇▇▇▇▇▇ (▇) ▇▇ ▇he ▇▇▇▇▇▇▇veness of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; Statement, (ivii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Final Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of any supplement to the Final Prospectus or for any other additional information; document to be filed pursuant to the 1934 Act which will be incorporated by reference in the Final Prospectus, (viv) of the issuance by the Commission of any stop order a Stop Order suspending (or the effect of which is to suspend or otherwise limit) the effectiveness of the Registration Statement (including any post-effective amendment thereto) or of the initiation, or the institution threatening, of any proceeding for that purpose; proceedings therefor, (v) of the receipt of any comments from the Commission and (vi) of the receipt by CPS the Company of any notification with respect to the suspension or limitation of the qualification of the Certificates Notes for sale in any jurisdiction or the initiation initiation, or threatening, of any proceeding for such that purpose. CPS If the Commission or other authority shall propose or enter a Stop Order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification Stop Order and, if issued or suspendedissued, to obtain the withdrawal of such Stop Order as soon as possible the withdrawal thereofpossible.
(b) Prior to During any Marketing Period, the filing thereof Company will comply with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates all requirements imposed upon it by the Underwriters if such document would be deemed to be incorporated by reference into 1933 Act and the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Trust Indenture Act, as many copies of now existing and as hereafter amended, and by the Final Prospectus, or as thereafter amended or supplementedRegulations, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulationsin force, so far as necessary to permit the completion continuance of sales of, or dealing in, the distribution of Notes in accordance with the Certificates as contemplated in this Agreement provisions thereof and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Notes is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any Certificates, 1933 Act any event shall occur have occurred as a result of which, in the judgment of the Company Company, you or in the reasonable opinion of the Underwritersyour counsel, it becomes necessary to amend or supplement the Final Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act, the Trust Indenture Act or the 1934 ActRegulations, or if there shall occur any material change affecting any of the representations and warranties in Section 1, the Company will notify you promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission and all other applicable bodies an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement or supplement declared effective as soon as possible and will deliver to you, without charge, such number of copies thereof as may be reasonably requested by you.
(c) The Company will promptly deliver to you a copy of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver without charge to you such number of copies of the Basic Prospectus, any Preliminary Final Prospectus, the Final Prospectus or Prospectus, the Registration Statement, and all amendments of and supplements to such documents (iiincluding any listing particulars and supplementary listing particulars), if any, as may be reasonably requested by you.
(d) prepare The Company will endeavor in good faith, in cooperation with you to timely qualify the Notes for offering and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing sale under the 1934 Act which securities and other applicable laws of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; provided that in no event shall the Company be incorporated by reference obligated to qualify to do business in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when any jurisdiction where it is not now so delivered, be misleading, qualified or to take action which would subject it to general service of process in any jurisdiction where it is not now so that the Final Prospectus will comply with applicable lawsubject or to conduct its business in a manner in which it is not currently so conducting its business.
(e) The Company will cooperate with make generally available (within the Underwriters in endeavoring to qualify the Certificates for sale under the laws meaning of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution Section 11(a) of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject 1933 Act and will arrange for the determination Rule 158 of the legality of the Certificates for purchase by institutional investors. The Company will, from time Regulations) to time, prepare its security holders and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, you as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, practicable an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying which need not be audited but which shall satisfy the provisions of Section 11(a) of the 1933 Act (including and Rule 158 promulgated thereunder)of the Regulations.
(jf) So long as any of The Company, during the Certificates are outstandingperiod when the Final Prospectus is required to be delivered under the 1933 Act, the Company will furnish file promptly all documents required to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements be filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition Section 13 or 14 of the Company as the Underwriter may from time to time reasonably request1934 Act.
(kg) On or before The Company will apply the Closing Date, the Company and CPS and proceeds from ▇▇▇ ▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to Notes as set forth under the Receivables to be marked to show caption "Use of Proceeds" in the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementFinal Prospectus.
(lh) To The Company will comply with all provisions of all undertakings contained in the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsRegistration Statement.
(mi) On the Closing Date, the The Company and CPS shall cause the Certificate Insurer to issue the Policy consents to the Trustee for the benefit use of the holders Final Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Notes may be sold, both in connection with the offering or sale of the Certificates Notes and for such period of time thereafter as the Final Prospectus is required by law to be delivered in form and substance satisfactory to each Underwriterconnection therewith.
Appears in 1 contract
Sources: Distribution Agreement (Bear Stearns Companies Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in If Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon (properly completed if Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus430A has been used) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) within the prescribed time period and will provide evidence satisfactory to DBSI of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(iiib) when, prior Prior to termination and through the completion of the offering distribution of the CertificatesShares, any amendment to the Registration Statement shall have been filed or become effective; Company will notify you promptly (ivand, if requested by DBSI, will confirm such notice in writing) (i) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vii) of the Company's intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; the Company shall make every reasonable effort to avoid the issuance of any such stop order, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts If the Commission shall propose or enter a stop order at any time, the Company will, prior to and through the completion of the distribution of the Shares, make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) possible. Prior to and through the filing thereof with the Commission, CPS will submit to each completion of the Underwritersdistribution of the Shares, for its approval after reasonable notice thereof, such approval the Company will not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or a copy of Rule 434) that differs from the prospectus supplement filed with the Commission on May 7, 2004 or file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which DBSI shall reasonably object in writing after being timely furnished in advance a copy thereof. The Company will provide DBSI with copies of all such amendments, filings and other documents a sufficient time prior to any filing or Final Prospectusother publication thereof to permit DBSI a reasonable opportunity to review and comment thereon.
(c) The Company will deliver tocooperate with the Representative in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of the qualification requirements of) the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or upon the order of, the Underwritersto file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as many copies of any Preliminary Final Prospectus are or may be required to continue such qualifications in effect for so long a period as the Underwriters Representative may reasonably requestrequest for distribution of the Shares. The Company will deliver shall advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or upon trading in any jurisdiction or any initiation of threat of any proceeding for any such purpose, and in the event of the issuance of any order ofsuspending such qualification, registration or exemption, the Underwriters during Company shall use its best efforts to obtain the period when withdrawal thereof at the earliest possible moment.
(d) The Company consents to the use and delivery of a Final the Prospectus is required under by the 1933 Act, as many copies Underwriters in accordance with Rule 430 and Section 5(b) of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. Securities Act.
(e) The Company will deliver to maintain in the Underwriters at or before the Closing Date, two Company's files manually signed copies of the Registration Statement Statement, as initially filed and all amendments thereto thereto, including all consents and exhibits filed therewith, and for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of the Prospectus and the Registration Statement (including Statement, and all amendments of and supplements to such number of copies of the exhibits filed therewith that may reasonably be requested)documents, including if any, and all documents filed under the 1934 Act and deemed to be incorporated by reference therein, in the Registration Statement and of all amendments Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York City time, on the Underwriters may business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(df) The Company will, and will cause the Trust to, comply with the 1933 Securities Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act RegulationsRules and Regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Shares as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time prior to the consummation of the Offering to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable the law.
(eg) The Company will cooperate make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the date of the Prospectus, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the date of the Prospectus, which earnings statement shall comply with the Underwriters in endeavoring to qualify requirements of Section 11(a) of the Certificates for sale under Act and Rule 158 of the laws of such jurisdictions as the Underwriters may designate Rules and Regulations, and will maintain advise you in writing when such qualifications in effect statement has been so long made available.
(h) Prior to the Closing Date, the Company will furnish to the Underwriters, as required for soon as they have been prepared by or are available to the distribution Company, a copy of any unaudited interim financial statements of the CertificatesCompany for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(i) No offering, except sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or without the prior written consent of DBSI, which consent shall not be unreasonably withheld; provided, however, that the Company will not be obligated may issue (i) shares of its Common Stock upon the exercise of options, (ii) shares of its Common Stock pursuant to qualify the Certificates in any jurisdiction in which such qualification would require the Company stock grants, (iii) options to qualify purchase its Common Stock, to do business as a foreign corporationdirectors, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject officers and will arrange for the determination employees of the legality Company, issued pursuant to employee or director benefit plans, stock option plans or the employee compensation plans and (iv) at the Company's discretion, up to 1,500,000 shares of Common Stock to be issued in connection with a transaction or series of transactions not initially involving a public offering.
(j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby (including any extensions permitted by the Rules and Regulations thereunder).
(k) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(l) The Company will use its best efforts to cause each executive officer, director, other person or entity listed on Exhibit B to furnish to you, on or prior to the Closing Date, a letter or letters substantially in the form of Exhibit C hereto (the "Lockup Agreements").
(m) The Company will use its best efforts to cause each executive officer, director and 5% or greater stockholder of the Certificates for purchase by institutional investors. Company's Common Stock, on or prior to the Closing Date, a NASD Questionnaire substantially in the form of Exhibit D hereto (the "NASD Questionnaires").
(n) The Company will, from time to time, prepare shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such statements, reports, reports with the Commission with respect to the sale of the Shares and other documents the application of the proceeds therefrom as are or may be required to continue such qualifications in effect for so long a period as accordance with Rule 463 under the Underwriters may reasonably request for distribution of the CertificatesAct.
(fo) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Shares in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(ip) The Company will cause maintain a transfer agent and, if necessary under the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement jurisdiction of incorporation of the Trust covering Company, a period of at least twelve consecutive months beginning after such Effective Date and satisfying registrar for the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Common Stock.
(jq) So long as The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies price of any reports and financial statements filed by or on behalf securities of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestCompany.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants Company, the MHC and agrees the Bank covenant with the several Underwriters thatAgent as follows:
(a) CPS The Company, the MHC and the Bank will use its best efforts prepare and file such amendments or supplements to cause the Registration Statement, if not effective at the Execution TimeProspectus, the Massachusetts Application, the Holding Company Application as may hereafter be required by the Securities Act Regulations or the Conversion Regulations or as may hereafter be requested by the Agent. Following completion of the Subscription and any amendment theretoCommunity Offering, to become effective as soon as reasonably practicable thereafter orin the event of a Syndicated Community Offering, if the procedure in Rule 430A is followedCompany, the MHC and the Bank will (i) promptly prepare and timely file with the Commission under Rule 424(b) SEC a Final Prospectus containing information previously omitted at the time of effectiveness of post-effective amendment to the Registration Statement in reliance upon Rule 430A. Prior relating to the termination results of the offering Subscription and Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post-effective amendment is required, will file with, or mail for filing to, the SEC a prospectus or prospectus supplement containing information relating to the results of the CertificatesSubscription and Community Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, CPS in either case in a form acceptable to the Agent. The Company, the MHC and the Bank will not file notify the Agent immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment of the Registration Statement or amendment or the filing of any supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each and the filing of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed Massachusetts Application, (ii) of the receipt of any comments from the Commissioner, the FRB or become effective; the SEC with respect to the transactions contemplated by this Agreement, the Plan or the Chart Bank Merger, (iviii) of any request by the Commission Commissioner, the FRB or the SEC for any amendment of to the Registration Statement Statement, the Massachusetts Application or the Holding Company Application or any amendment or supplement to the Final Prospectus or for any other additional information; , (iv) of the issuance by the Commissioner or the FRB of any order suspending the Offerings, the use of the Prospectus or the Chart Bank Merger or the initiation of any proceedings for that purpose, (v) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the institution initiation of any proceeding proceedings for that purpose; , and (vi) of the receipt by CPS of any notification notice with respect to the suspension of the any qualification of the Certificates Securities for offering or sale in any jurisdiction or jurisdiction. The Company, the initiation of any proceeding for such purpose. CPS MHC and the Bank will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior The Company, the MHC and the Bank will give the Agent notice of its intention to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld file or delayed, a copy of prepare any post-- effective amendment to the Registration StatementHolding Company Application, any Rule 462(b) the Massachusetts Application or the Registration Statement proposed (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use in connection with the Syndicated Community Offering of the Securities which differs from the prospectus on file at the SEC at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed or a copy pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Agent with copies of any document such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to be filed under which the 1934 Act before Agent or counsel for the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusAgent may object.
(c) The Company will deliver to, or upon the order ofCompany, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as MHC and the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company Bank will deliver to the Underwriters at or before the Closing Date, two Agent as many signed copies and as many conformed copies of the Massachusetts Application and the Registration Statement as originally filed and all amendments of each amendment thereto (including all exhibits filed therewiththerewith or incorporated by reference therein) as the Agent may reasonably request, and will deliver from time to the Underwriters time such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, Prospectus as the Underwriters Agent may from time to time reasonably request.
(d) The Company willDuring the period when the Prospectus is required to be delivered, the Company, the MHC and the Bank will comply, at their own expense, with all requirements imposed upon them by the Commissioner and the FRB by the applicable Conversion Regulations, as from time to time in force, and will cause by the Trust toNasdaq Stock Market, comply with the 1933 Securities Act, the 1933 Securities Act Regulations, the 1934 Act Exchange Act, and the 1934 Act Regulationsrules and regulations of the SEC promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the completion continuance of sales or dealing in shares of Common Stock during such period in accordance with the distribution of the Certificates as contemplated in this Agreement provisions hereof and the Final Prospectus. .
(e) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event or circumstance shall occur as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersAgent, it becomes necessary to amend or supplement the Final Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company, the MHC and the Bank will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material factor omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus it is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance MHC and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company Bank will furnish to the Underwriters Agent a reasonable number of copies of all reports such amendment or other communications (financial or otherwise) furnished or made available supplement. For the purpose of this subsection, the Company, the MHC and the Bank will each furnish such information with respect to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company itself as the Underwriter Agent may from time to time reasonably request.
(kf) On or before the Closing DateThe Company, the MHC and the Bank will take all necessary action, in cooperation with the Agent, to qualify the Securities for offering and sale under the applicable securities laws of such states of the United States and other jurisdictions as the Conversion Regulations may require and as the Agent and the Company have agreed; provided, however, that the Company, the MHC and CPS the Bank shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities have been so qualified, the Company, the MHC and ▇the Bank will file such statements and reports as may be required by the 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 Registration Statement.
(g) The Company authorizes ▇▇▇▇ shall cause the respective computer records ▇▇▇▇ and any Selected Dealers to act as agent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and CPS other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and Samco relating consolidated statements of income, stockholders' equity and cash flows, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company, the MHC, the Bank and the Subsidiaries for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the Receivables to be marked to show the Trustee's absolute ownership time of the Receivablesfurnishing thereof to stockholders of the Company.
(j) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the SEC under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from and after the Closing Date neither time to time, such other information concerning the Company nor CPS nor Samco shall take any action inconsistent as the Agent may reasonably request.
(k) The Company, the MHC and the Bank will conduct the Conversion, including the formation and operation of the Foundation, in all material respects in accordance with the Trustee's ownership of such ReceivablesPlan, the Conversion Regulations and all other than as expressly permitted applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company, the MHC or the Bank by the Pooling and Servicing AgreementCommissioner or the FRB.
(l) To The Company, the extent, if any, that MHC and the ratings provided with respect to Bank will use the Certificates net proceeds received by either it from the sale of the Rating Agencies is conditional upon Securities in the furnishing of documents or manner specified in the taking of any other actions by Prospectus under "How We Intend to Use the Company or CPS, CPS shall, or shall cause Net Proceeds from the Company to, furnish such documents and take any such other actionsOffering."
(m) On The Company will report the Closing Dateuse of proceeds from the Offerings on its first periodic report filed with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act and on any subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act Regulations.
(n) The Company will maintain the effectiveness of the Exchange Act Registration Statement for not less than three years and will comply in all material respects with its filing obligations under the Exchange Act. The Company will use its best efforts to effect and maintain the listing of the Common Stock on the Nasdaq Stock Market and, once listed on the Nasdaq Stock Market, the Company will comply with all applicable corporate governance standards required by the Nasdaq Stock Market.
(o) The Company, the MHC and CPS the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free-Riding and Withholding."
(p) Other than in connection with the Chart Bank Merger or any employee benefit plan or arrangement described in the Prospectus, the Company will not, without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities and the Foundation Shares for a period of 180 days following the Closing Time.
(q) During the period beginning on the date hereof and ending on the later of the third anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant to Sections 6 or 7, respectively, none of the Company, the MHC or the Bank shall, without the prior written consent of the Agent, take or permit to be taken any action that could result in the Bank Common Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance; provided, however, that this covenant shall cause be null and void if the Certificate Insurer to issue the Policy FRB, by regulation, policy statement or interpretative release, or by written order or written advice addressed to the Trustee Bank or the Agent specifically addressing the provisions of Section 6(a) hereof, permits indemnification of the Agent by the Bank as contemplated by such provisions.
(r) The Company, the MHC and the Bank will comply with the conditions imposed by or agreed to with the FRB in connection with its approval of the Holding Company Application in connection with their approval or non-objection of, or non-objection to, the Conversion, including those conditions relating to the establishment and the operation of the Foundation; the Company, the MHC and the Bank shall use their best efforts to ensure that the Foundation submits within the time frames required by applicable law a request to the Internal Revenue Service to be recognized as a tax-exempt organization under Section 501(c)(3) of the Code; the Company, the MHC and the Bank will take no action which will result in the possible loss of the Foundation's tax exempt status; and none of the Company, the MHC or the Bank will contribute any additional assets to the Foundation until such time that such additional contributions will be deductible for federal and state income tax purposes.
(s) The Company shall not deliver the Securities until the Company, the MHC and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived in writing by the Agent.
(t) The Company, the MHC or the Bank will furnish to ▇▇▇▇ ▇▇▇▇ as early as practicable prior to the Closing Time, but no later than two (2) full business days prior thereto, a copy of the latest available audited consolidated financial statements of the Company, the MHC and the Bank and the Subsidiaries which have been read by Wolf & Company, P.C., as stated in their letters to be furnished pursuant to subsections (e) and (f) of Section 5 hereof.
(u) The Company will promptly register as a bank holding company under the BHCA, as required.
(v) Each of the Company, the MHC and the Bank will conduct its business in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders, including all decisions, directives and orders of the SEC, the Nasdaq Stock Market, the Commissioner and the FRB.
(w) The Bank will not amend the Plan in any manner that would affect the sale of the Securities or the terms of this Agreement.
(x) The Company, the MHC and the Bank will not, prior to the Closing Time, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business consistent with past practice, except as contemplated by the Prospectus.
(y) The Company, the MHC and the Bank will use all reasonable efforts to comply with, or cause to be complied with, the conditions precedent to the several obligations of the Agent specified in Section 5 hereof.
(z) The Company, the MHC and the Bank will provide the Agent with any information necessary to carry out the allocation of the Securities in the event of an oversubscription, and such information will be accurate and reliable in all material respects.
(aa) The Company, the MHC and the Bank will notify the Agent when funds have been received for the benefit minimum number of Securities set forth in the holders of Prospectus.
(bb) Prior to the Certificates in form Closing Time, the Company, the MHC and substance satisfactory the Bank shall have received each approval required to each Underwriterconsummate the Chart Bank Merger, and all applicable waiting periods shall have expired.
Appears in 1 contract
Sources: Agency Agreement (Benjamin Franklin Bancorp, M.H.C.)
Covenants of the Company. (a) The Company covenants and agrees with the several Underwriters Underwriter and the Selling Shareholder that:
(ai) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (A) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus containing supplementary prospectus setting forth such other information previously omitted at and the time terms of effectiveness of the offering contemplated by Section 2 hereof, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in reliance upon Rule 430A. Prior writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Certificates, CPS Shares by the Underwriters.
(ii) The Company will not file advise the Underwriter and the Selling Shareholder promptly of any request of the Commission for amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) , or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceeding proceedings for that purpose; , and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS Company will use its best all reasonable efforts to prevent the issuance of any such stop order preventing or suspending the suspension use of any such qualification and, if issued or suspended, the Prospectus and to obtain as soon as possible the withdrawal lifting thereof, if issued.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(ciii) The Company will deliver to, or upon the order of, the UnderwritersUnderwriter, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriters Underwriter during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final ProspectusProspectus in final form, or as thereafter amended or supplemented, as the Underwriters Underwriter may reasonably request; provided, however, that if the Underwriter is required to deliver a prospectus in connection with sales of any shares at any time nine months or more after the date of this Agreement, upon your request, but at the expense of such Underwriter, the Company will prepare and deliver to such Underwriter such copies of an amended and supplemented Prospectus as you may reasonably request. The Company will deliver to the Underwriters Underwriter at or before the Closing Date, two signed four complete conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Underwriter such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)Statement, including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters Underwriter may from time to time reasonably request.
(div) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriter, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly will, at its election, either (iA) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (iiB) prepare and file, or cause to be prepared and filed, file with the Commission (at the expense of the Company) an appropriate filing under the 1934 Exchange Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ev) The Company will cooperate with the Underwriters in endeavoring make generally available to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreementsecurity holders, as soon as such statements and reports are furnished it is practicable to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicabledo so, but no in any event not later than sixteen 15 months after the Effective Dateeffective date of the Registration Statement, an earnings statement of the Trust (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after such Effective Date and satisfying the provisions effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act (including and Rule 158 promulgated thereunder)of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(jvi) So long as any The Company will, for a period of five years from the Certificates are outstandingClosing Date, the Company will furnish deliver to the Underwriters Underwriter copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver filed with any securities exchange pursuant to the Underwriters during requirements of such period, (i) as soon as they are available, copies of any reports and financial statements filed by exchange or on behalf of the Trust or the Company with the Commission pursuant to the Securities Act or the Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestAct.
(kb) On or before The Selling Shareholder covenants and agrees with the Closing Date, Underwriter that:
(i) In order to document the Company Underwriter's compliance with the reporting and CPS and ▇▇▇▇▇ shall cause the respective computer records withholding provisions of the Company Tax Equity and CPS Fiscal Responsibility Act of 1982 and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership Interest and Dividend Tax Compliance Act of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided 1983 with respect to the Certificates transactions herein contemplated, the Selling Shareholder agrees, if required, to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by either Treasury Department regulations in lieu thereof).
(ii) The Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Rating Agencies is conditional upon the furnishing of documents or the taking price of any securities of the Company.
(iii) No offering, sale or other actions by disposition of any Class A Common Stock of the Company or CPSany other securities convertible or exchangeable or exercisable for Class A Common Stock or derivatives of Class A Common Stock, CPS shallwill be made for a period of 45 days after the date of this Agreement, directly or indirectly, by the Selling Shareholder, otherwise than hereunder, or shall cause with the Company toprior written consent of Goldman, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.Sachs & Co.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representatives orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representatives sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during with copi▇▇ ▇▇ ▇▇ch amendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without -------- also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representatives and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters endeavor, in endeavoring cooperati▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇rwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying Company (in form complying with the provisions of Section 11(aRule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later t▇▇▇ ▇▇▇ first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Act (including Rule 158 promulgated thereunder)Registration Statement.
(je) So long As soon as practicable after the date of this Agreement, and in any of event within the Certificates are outstandingtime prescribed by Rule 424 under the 1933 Act, the Company will furnish to file the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant to and will advise the Securities Exchange Act Representatives of 1934, as amended, such filing and (ii) will confirm such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestadvice in writing.
(kf) On or before During a period of 15 days from the Closing Datedate of this Agreement, the Company and CPS and ▇▇▇▇▇ shall cause will not, without the respective computer records of Representatives' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the Company and CPS and Samco relating sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
Senior Notes (l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee except for the benefit Senior Notes issued pursuant to this Agreement). The Representatives agree that commercial paper or other debt securities with scheduled maturities of the holders of the Certificates in form and substance satisfactory less than one year are not subject to each Underwriterthis Section 3(f).
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thateach Underwriter as follows:
(ai) CPS The Company will use its best efforts (i) prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to cause Rule 424(b) of the Registration Statement1933 Act Regulations not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in applicable, such earlier time as may be required by Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b430A(a)(3) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly ; (ii) advise the Underwriters (i) Representatives, promptly after it receives notice thereof, of the time when the Registration Statement, if not effective at the Execution Time, and or any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and has been filed or becomes effective or any supplement thereto, shall have to the Prospectus or any amended Prospectus has been filed with the Commission pursuant to Rule 424(b)filed; (iii) whenadvise the Representatives, prior to termination promptly after it receives notice thereof, of (A) the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) receipt of any request by comments from the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; Commission, (vB) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement any preliminary prospectus or the institution of any proceeding for that purpose; and Prospectus, (viC) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates Shares for offering or sale in any jurisdiction or jurisdiction, (D) the initiation or threatening of any proceeding for any such purpose. CPS will use its best efforts to prevent the issuance of , or (E) any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates request by the Underwriters if such document would be deemed to be incorporated by reference into Commission for the amending or supplementing of the Registration Statement or Final Prospectus.
Prospectus or for additional information; (civ) The Company will deliver to, or upon advise the order of, Representatives promptly of the Underwriters, from time to time, as many copies occurrence of any Preliminary Final Prospectus event, during such period as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer a dealer, which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make any statement of a material fact therein not misleading; and, (v) in the event of the issuance of any stop order or any order preventing or suspending the use of any preliminary prospectus or the Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal.
(ii) The Company will (i) give the Representatives notice of its intention to prepare or file any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus that the Company proposes for use by the Underwriters in connection with the offering of the Shares that differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), (ii) furnish the Underwriters with copies of any such amendments or supplements a reasonable time prior to the proposed filing or use thereof, and (iii) not file any such amendment or any supplement or use any such prospectus to which the Representatives shall reasonably object promptly after reasonable notice thereof.
(iii) Promptly from time to time, the Company will take such action as the Representatives may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the Representatives may 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 that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(iv) The Company will furnish each Underwriter with copies of the Prospectus in such quantities as such Underwriter may from time to time reasonably request. If the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of any Certificatesthe Shares, and if at such time any event shall occur have occurred as a result of which, in which the judgment Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the reasonable opinion of the Underwriters, it becomes omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final under which they were made when such Prospectus is delivered to a purchaserdelivered, not misleading, or, if for any other reason it is shall be necessary at any time during such period to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement order to comply with the 1933 Act or and the 1934 Act1933 Act Regulations, the Company will promptly notify each of the Representatives and upon the Representatives' request will prepare and furnish without charge to the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference any dealer in the Final Prospectus so that the Final Prospectus securities as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions many copies as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance. In case that the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested Underwriters are required to deliver a prospectus in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness sales of any of the conditions contained in this Agreement; and all actions taken by Shares at any time nine months or more after the time of issue of the Prospectus, upon the Underwriters' request but at the Underwriters' expense, the Company will prepare and deliver to the Underwriters as many copies as the Underwriters may request of an amended or CPS to authorize the sale supplemented Prospectus complying with Section 10(a)(3) of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter1933 Act.
(iv) The Company will cause the Trust to make generally available to Certificateholders its securityholders as soon as practicable, but no in any event not later than sixteen eighteen months after the Effective Date"effective date of the Registration Statement" (as defined in Rule 158(c) of the 1933 Act Regulations), an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date Company and satisfying the provisions of its subsidiaries (which need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including including, at the option of the Company, Rule 158 promulgated thereunder158).
(jvi) So long The Company will furnish to its stockholders, as any soon as practicable after the end of each fiscal year, an annual report (including a balance sheet and statements of income, stockholders' equity and cash flow of the Certificates are outstandingCompany and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year, consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail.
(vii) During a period of five years from the effective date of the Registration Statement, the Company will furnish to the Underwriters Representatives copies of all reports or other communications (financial or otherwiseother) furnished or made available to Certificateholdersits stockholders, and deliver to the Underwriters during such periodRepresentatives, (i) as soon as they are available, copies of any reports and financial statements furnished to or filed by or on behalf of the Trust or the Company with the Commission pursuant or any national securities exchange or quotation system on which any class of securities of the Company is listed.
(viii) The Company will not invest, reinvest or otherwise use the proceeds received by the Company from the sale of the Firm Shares or Option Shares in such a manner, or take any action or omit to take any action, that would cause the Securities Exchange Act Company to become an "investment company" as that term is defined in the Investment Company Act.
(ix) The Company will use the net proceeds of 1934the sale of the Firm Shares and Option Shares for the purposes described in the Prospectus under "Use of Proceeds."
(x) The Company will take all action to ensure that the Common Stock continues to be listed on the Nasdaq National Market or any national securities exchange.
(xi) Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus, as amendedthe Company will not (A) take, and directly or indirectly, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, or (B) for a period of 90 days following the Representation Date: (i) sell, bid for or purchase the Shares or pay any person any compensation for soliciting purchases of the Shares, or (ii) such additional information concerning the business and financial condition pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company as the Underwriter may from time to time reasonably requestCompany.
(kxii) On or before During the period from the date of the Pricing Agreement until ninety (90) days after the Closing DateTime, the Company and CPS and will not, without the prior written consent of Friedman, Billings, ▇▇▇▇▇▇ shall cause & Co., directly or indirectly, sell, offer to sell, grant any option for the respective computer records sale of, or otherwise dispose of, any Common Stock or shares of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take Common Stock or any action inconsistent with the Trustee's ownership of such Receivablesother security convertible into or exchangeable into or exercisable for Common Stock, other than (i) in accordance with this Agreement, (ii) in connection with the Company's stock option plan described in the Prospectus, or (iii) as expressly permitted by otherwise contemplated in the Pooling and Servicing AgreementProspectus.
(lxiii) To the extent, if any, that the ratings provided with respect The Company shall use its best efforts to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents do and perform all things required or the taking of any other actions necessary to be done and performed under this Agreement by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On prior to the Closing Date, Time and to satisfy all conditions precedent on the Company and CPS shall cause the Certificate Insurer to issue the Policy Company's part to the Trustee for the benefit delivery of the holders of the Certificates in form and substance satisfactory to each UnderwriterShares.
Appears in 1 contract
Sources: Underwriting Agreement (Brookdale Living Communities Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Underwriters orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Underwriters sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Preliminary Supplemented Prospectus, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any the Preliminary Supplemented Prospectus, the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver each amendment and supplement to the Underwriters at or before Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus, as the case may be, in order to make the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with endeavor, in ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ the Underwriters in endeavoring Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Underwriters of such filing and to confirm such advice in writing.
(f) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingthis Agreement, the Company will furnish not, without the Underwriters' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (except for the Senior Notes issued pursuant to this Agreement). The Underwriters copies of all reports agree that commercial paper or other communications (financial or otherwise) furnished or made available debt securities with scheduled maturities of less than one year are not subject to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestthis Section 3(f).
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS The Company will (i) use its reasonable best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, Statement to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior 430A of the Rules and Regulations; (ii) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representative shall not previously have been advised and furnished with a copy and to which the Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Certificates, CPS Securities by the Underwriters.
(b) The Company will not file take, directly or indirectly, any amendment action designed to cause or result in, or that has constituted or could reasonably be expected to constitute, the stabilization or manipulation of the Registration Statement or amendment or supplement (including the Final Prospectus or price of any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each securities of the Underwriters a copy for its review prior to filing and Company.
(c) The Company will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters Representative promptly (i) when the Registration Statement, if not Statement or any post-effective at the Execution Time, and any amendment thereto, thereto shall have become effective; (ii) when of receipt of any comments from the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b)Commission; (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by of the Commission for any amendment of the Registration Statement or for supplement to the Final Prospectus or for any other additional information; and (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the suspension effectiveness of any such qualification and, if issued the Registration Statement or suspended, preventing or suspending the use of the Prospectus and to obtain as soon as possible the withdrawal lifting thereof, if issued.
(bd) Prior to the filing thereof The Company will cooperate with the CommissionRepresentative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, CPS will submit file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to each qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusSecurities.
(ce) The Company will deliver to, or upon the order of, the UnderwritersRepresentative, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters Representative may reasonably request. The Company will deliver to, or upon the order of, the Underwriters Representative during the period when delivery of a Final Prospectus is required under the 1933 ActAct and the Rules, as many copies of the Final ProspectusProspectus in final form, or as thereafter amended or supplemented, as the Underwriters Representative may reasonably request. The Company will deliver to the Underwriters Representative at or before the Closing Date, two four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, ) and of all amendments thereto, as the Underwriters Representative may from time to time reasonably request.. The copies of the Registration Statement and Prospectus and each amendment and 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.
(df) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Securities as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable the law.
(eg) The Company, during the period when the Prospectus is required to be delivered under the Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(h) The Company will cooperate make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) No offering, sale, short sale or other disposition of any ▇▇▇▇, shares of Class A Common Stock, shares of Class B common stock, $.01 par value per share, of the Company (the “Class B Common Stock”), or Notes (including any notes issued in connection with a subsequent issuance of ▇▇▇▇ as described in the Prospectus) of the Company or other securities convertible into or exchangeable or exercisable for such securities or derivative of such securities (or agreement for such) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than (i) hereunder, (ii) as part of the Transactions, as specifically contemplated by and described in the Prospectus, or (iii) with the Underwriters prior written consent of the Representative; provided, that this provision will not restrict the Company from (i) awarding options to purchase its securities pursuant to employee benefit plans as specifically described in endeavoring to qualify the Certificates for sale under Prospectus, (ii) issuing its Class A or Class B Common Stock issuable upon the laws exercise or conversion of such jurisdictions as options, warrants or other securities outstanding on the Underwriters may designate and will maintain such qualifications Closing Date, ,or (iii) issuing Common Stock in effect connection with any merger, consolidation or stock or asset acquisition, so long as required for the distribution recipients of the Certificates, except that Common Stock in such transaction agree to be bound by the same lock-up restrictions as the Company.
(k) The Company will not be obligated to qualify shall apply the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service net proceeds of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination its sale of the legality Securities as described under the heading “Use of Proceeds” in the Prospectus and shall report with the Commission with respect to the sale of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare Securities and file such statements, reports, and other documents the application of the proceeds therefrom as are or may be required to continue such qualifications in effect for so long a period as accordance with Rule 463 under the Underwriters may reasonably request for distribution of the CertificatesAct.
(fl) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Securities in such a manner as would require the Company, CPS Company or the Trust any of its subsidiaries to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(im) The Company will cause use its reasonable best efforts in cooperation with the Trust Underwriters to make generally available permit the Securities to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date be eligible for clearance and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)settlement through DTC.
(jn) So long as any of the Certificates are outstanding, the Company will furnish Prior to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company will issue no press release or other communications directly or indirectly and CPS and ▇▇▇▇▇ shall cause hold no press conference with respect to the respective computer records Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Securities without the prior written consent of the Representative unless in the judgment of the Company and CPS its counsel, and Samco relating after notification to the Receivables Representative, such press release or communication is required by law.
(o) The Company will use its reasonable best efforts to do and perform all things required to be marked done and performed by it under this Agreement, the Indenture, the Notes, the Transaction Documents and any other related agreements prior to show the Trustee's absolute ownership of the Receivables, and from and or after the Closing Date neither and to satisfy all conditions precedent on its part to the Company nor CPS nor Samco shall take any action inconsistent with obligations of the Trustee's ownership Underwriters to purchase and accept delivery of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementSecurities.
(lp) To the extent, if any, that the ratings provided with respect Pursuant to the Certificates by either Offer to Purchase and Consent Solicitation Statement, dated September 16, 2004 (the “Offer to Purchase”), on or prior to October 18, 2004, the Company shall deposit with The Bank of New York, as depository, the amount of immediately available funds necessary to pay each tendering holder of the Rating Agencies is conditional upon Company’s 9 5/8% senior subordinated notes due 2007 (the furnishing of documents or “2007 Notes”), except to the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take extent any such other actions.
(m) On obligations were settled on the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS The Company will (A) use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus containing information previously omitted at in a form approved by the time of effectiveness of Underwriters, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriters shall not -13- 14 previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in reliance upon Rule 430A. Prior writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Certificates, CPS Securities by the Underwriters.
(b) The Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters promptly (iA) when the Registration Statement, if not any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; , (ivB) of receipt of any comments from the Commission relating to the Registration Statement, the Prospectus or any documents incorporated by reference therein, (C) of any request by of the Commission for any amendment of the Registration Statement or for supplement to the Final Prospectus or for any other additional information; , and (vD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the suspension use of any such qualification and, if issued or suspended, the Prospectus and to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice lifting thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusissued.
(c) The Company will cooperate with the Underwriters in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Securities.
(d) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. Prospectus in final
(e) The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Securities as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, file with the Commission (at the expense of the Company) an appropriate filing under the 1934 Exchange Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable the law.
(ef) The Company will cooperate with make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution effective date of the CertificatesRegistration Statement, except that an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) Prior to the Closing Date, the Company will not be obligated furnish to qualify the Certificates in Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any jurisdiction in which such qualification would require unaudited interim
(h) The Company shall apply the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service net proceeds of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination its sale of the legality of Securities as set forth in the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesProspectus.
(fi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Securities in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Investment Company Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies price of any reports and financial statements filed by or on behalf securities of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestCompany.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during wi▇▇ ▇▇▇▇▇s of each amendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representative and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate with the Underwriters endeavor, in endeavoring co▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇he Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not late▇ ▇▇▇▇ ▇he first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of at least twelve consecutive months beginning after such Effective Date 15 days from the date of this Agreement, the Company will not, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (except for the Senior Notes issued pursuant to this Agreement and satisfying the provisions of Section 11(a) $25,000,000 aggregate principal amount of the Act (including Rule 158 promulgated thereunderCompany's Series E 4.90% Senior Notes due December 15, 2013). The Underwriters agree that commercial paper or other debt securities with scheduled maturities of less than one year are not subject to this Section 3(e).
(jf) So long As soon as practicable after the date of this Agreement, and in any of event within the Certificates are outstandingtime prescribed by Rule 424 under the 1933 Act, the Company will furnish to file the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant to and advise the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership Representative of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementconfirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Savannah Electric & Power Co)
Covenants of the Company. The Company covenants and agrees with the several Underwriters each Purchaser that:
(a) CPS the Company will use its best efforts promptly deliver to cause the Registration StatementRepresentative two signed copies of the registration statement relating to the Bonds as originally filed and of all amendments thereto heretofore or hereafter made (in each case including all Incorporated Documents and exhibits thereto, if not effective at the Execution Timeother than exhibits incorporated by reference), and any amendment including a signed copy of each consent and certificate included therein or filed as an exhibit thereto, and will deliver to become effective the Representative conformed copies of each of the foregoing (excluding such exhibits, consents and certificates) for distribution to the Purchasers. The Company will also deliver to the Purchasers, through the Representative, as soon as reasonably practicable after the date hereof and thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of the Prospectus and any Preliminary Final Prospectus amendments or supplements thereto as the Underwriters Representative may reasonably request. request for the purposes contemplated by the 1933 Act.
(b) The Company will deliver tonot file any amendment to the Registration Statement (including any filing under Rule 462(b) of the 1933 Act Regulations) or make any amendment or supplement to the Prospectus (including any Term Sheet) of which the Representative shall not previously have been advised or which shall have been reasonably disapproved in writing by the Representative or Cahill Gordon & ▇▇▇▇▇▇▇.
(▇) ▇▇e Company will pay or cause to be paid (i) all expenses in connection with (A) the preparation and filing by it of the Registration Statement, or upon (B) the order ofpreparation, the Underwriters during the period when printing, issuance and delivery of a Final Prospectus is required under the 1933 ActBonds as provided in paragraph 6 hereof, as many copies (C) the preparation, execution, filing and recording of the Final ProspectusIndenture and the Supplemental Indenture and the preparation of this Contract, or as thereafter amended or supplemented(D) the preparation, as issuance and delivery of the Underwriters may reasonably request. The Company will deliver Class A Bonds, (E) the preparation, execution, filing and recording of the indenture supplemental to the Underwriters at or before PSCO 1939 Mortgage creating the Closing DateClass A Bonds (the "1939 Mortgage Supplemental Indenture"), two signed and (F) the printing and delivery to the Purchasers, through the Representative, in reasonable quantities, of copies of the Registration Statement and all amendments thereto including all exhibits filed therewiththe Prospectus, and will deliver any amendments or supplements thereto (except as otherwise provided in subparagraph (d) of this paragraph 7), this Contract, the Indenture and the Supplemental Indenture, (ii) the fees and disbursements of the Company's counsel and accountants related to the Underwriters such number of copies preparation of the Registration Statement (including such number of copies and Prospectus, the issuance and sale of the exhibits filed Bonds and issuance and delivery of the Class A Bonds, (iii) the expenses incurred in connection with the qualification of the Bonds under securities laws in accordance with subparagraph (g) of this paragraph 7, including filing fees and reasonable fees and disbursements of Cahill Gordon & Reinde▇ ▇▇ co▇▇▇▇▇▇▇n therewith that may reasonably be requestedand in connection with the preparation of the Blue Sky Survey and the Legal Investment Survey, if any, and (iv) all taxes, if any (except transfer taxes), on the issuance of the Bonds. If this Contract is terminated in accordance with subparagraph (a)(i), (a)(ii) or (b) of paragraph 12 hereof, the Company will reimburse the Purchasers for all their out-of-pocket expenses, including documents filed under the 1934 Act fee and deemed disbursements of Cahill Gordon & Reindel. ▇▇▇ ▇▇▇▇▇▇▇ wi▇▇ ▇▇▇ in any event be liable to be incorporated by reference therein, and any of all amendments thereto, as the Underwriters may from time to time reasonably requestPurchasers for damages on account of the loss of anticipated profits.
(d) The Company willIf, and will cause at any time when a prospectus relating to the Trust to, comply with Bonds is required to be delivered under the 1933 Act, the 1933 Act RegulationsProspectus, the 1934 Act and the 1934 Act Regulationsas it may then have been amended or supplemented, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of whichwould, in the judgment opinion of the Company or in the reasonable opinion Representative, include an untrue statement of the Underwriters, it becomes a material fact or omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, oror if, if at such time, it is shall be necessary at any time to amend or supplement the Final Prospectus Prospectus, as it may then have been amended or supplemented, in order to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with Section 10 of the 1933 Act or the 1934 Act1933 Act Regulations, the Company will promptly notify each of the Underwriters and will promptly either (iwill, subject to Section 7(b) hereof, forthwith prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus which will correct such statement or (ii) prepare and file, omission or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of effect such jurisdictions as the Underwriters may designate compliance and will maintain such qualifications in effect so long as required for the distribution furnish a reasonable number of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company thereof to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Bond Purchase Contract (Public Service Co of Colorado)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thateach Initial Purchaser as follows:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company agrees that it will not and will cause the Trust its Affiliates not to, directly or indirectly, solicit any offer to buy, sell or make generally available to Certificateholders as soon as practicableany offer or sale of, but no later than sixteen months after the Effective Dateor otherwise negotiate in respect of, an earnings statement securities of the Trust covering Company of any class if, as a period result of at least twelve consecutive months beginning after the doctrine of "integration" referred to in Rule 502 under the Securities Act, such Effective Date offer or sale would render invalid (for the purpose of (i) the sale of the Debentures by the Company to the Initial Purchasers, (ii) the resale of the Debentures by the Initial Purchasers to Subsequent Purchasers or (iii) the resale of the Debentures by such Subsequent Purchasers to others) the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof or by Rule 144A thereunder or otherwise.
(ii) The Company agrees that, in order to render the Debentures eligible for resale pursuant to Rule 144A under the Securities Act, while any of the Debentures remain outstanding and satisfying are "restricted securities" within the provisions meaning of Rule 144 under the Act, it will make available, upon request, to any holder of Debentures or prospective purchasers of Debentures the information specified in Rule 144A(d)(4), unless the Company furnishes information to the Commission pursuant to Section 11(a13 or 15(d) of the Act (including Rule 158 promulgated thereunder)Exchange Act.
(jiii) So long as any Until the expiration of two years after the original issuance of the Certificates are outstandingDebentures, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholdersnot, and deliver will use its reasonable efforts to cause its subsidiaries over which it has control not to, resell any Debentures which are "restricted securities" (as such term is defined under Rule 144(a)(3) under the Underwriters during such periodSecurities Act), whether as beneficial owner or otherwise (i) except as soon agent acting as they are available, copies of any reports and financial statements filed by or a securities broker on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit account of customers in the holders ordinary course of the Certificates business in form and substance satisfactory to each Underwriterunsolicited broker's transactions.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several ------------------------ Underwriters that:
(a) CPS If the Registration Statement has not yet been declared effective the Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, amendments thereto to become effective as soon promptly as reasonably practicable thereafter orpossible, and if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the Prospectus containing information previously omitted at (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing period and will not provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance a term sheet that complies with the 1933 Act Regulations. CPS requirements of Rule 434.
(b) The Company will promptly advise the Underwriters notify you immediately (and, if requested by you, will confirm such notice in writing)
(i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, shall have amendments thereto become effective; , (ii) when upon the Final Prospectus, and occurrence of any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination event or discovery of the offering any fact as a result of the Certificates, any amendment to which the Registration Statement shall have been filed or become effective; Prospectus would, in the judgment of the Company, need to be amended or supplemented, (iviii) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for that purpose; and proceedings therefor, (vi) of the receipt of any comments from the Commission and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS possible. The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, make any filing under Rule 462(b) Registration Statement proposed of the Regulations or file any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement, before or after the effective date of the Registration Statement, to which you shall reasonably object in writing after being timely furnished in advance a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusthereof.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, Regulations so as to permit the completion of the distribution of the Certificates Shares as contemplated in this Agreement and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any Certificates, Act any event shall occur have occurred or any fact shall have been discovered as a result of whichwhich the Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company include an untrue statement of a material fact or in the reasonable opinion of the Underwriters, it becomes omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActRegulations, the Company will notify you promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement or supplement declared effective as soon as possible.
(d) The Company will promptly deliver to you four signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request, and the Company hereby consents to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with use of such copies for purposes permitted by the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawAct.
(e) The Company will cooperate endeavor in good faith, in cooperation with you, at or prior to the Underwriters in endeavoring time of effectiveness of the Registration Statement, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as the Underwriters you may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatesprocess.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available (within the meaning of Section 11(a) of the Act) to Certificateholders its security holders and to you as soon as practicable, but no not later than sixteen months 45 days after the Effective Dateend of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earnings earning statement (in form complying with the provisions of Rule 158 of the Trust Regulations) covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) effective date of the Act (including Rule 158 promulgated thereunder)Registration Statement.
(jg) So long as During the period of 180 days from the date of the Prospectus, the Company will not directly or indirectly, without the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc., issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or otherwise dispose of, or maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under the ▇▇▇▇ ▇▇▇) in, or enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the Certificates are outstandingeconomic consequences of ownership of, any shares of the Company's Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock), and the Company has obtained or will obtain the undertaking of each of its officers, directors and stockholders not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of presently outstanding stock options. The foregoing provisions shall not apply to: (i) stock option grants and exercises made pursuant to the Company's 2000 Equity Incentive Plan, up to the maximum number of shares of Common Stock currently reserved for issuance under such plan as described in the Prospectus; and (ii) grants of rights to and issuances of Common Stock made pursuant to the Company's 2000 Employee Stock Purchase Plan, up to the maximum number of shares of Common Stock currently reserved for issuance under such plan as described in the Prospectus.
(h) During a period of three years from the effective date of the Registration Statement, the Company will furnish to the Underwriters you copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are availableall reports to its stockholders, copies of any reports and (ii) all reports, financial statements and proxy or information statements filed by or on behalf of the Trust or the Company with the Commission or any national securities exchange. The Company, during the period when the Prospectus is required to be delivered under the Act, will file all documents required to be filed with the Commission pursuant to the Securities Exchange 1934 Act of 1934, as amended, within the time periods required by the 1934 Act and (ii) such additional information concerning the business rules and financial condition regulations of the Commission thereunder.
(i) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus and report such use of proceeds as may be required pursuant to Rule 463 of the Regulations.
(j) The Company will use its best efforts to cause the Shares to be quoted on the Nasdaq National Market and to maintain quotation on the Nasdaq Stock Market so long as any of the Shares are outstanding, unless the Company elects to have the Shares listed on an exchange comparable to the Nasdaq National Market, such as the Underwriter may from time to time reasonably requestNYSE or AMEX.
(k) On The Company hereby agrees that it will, at the request of the Underwriters, direct the transfer agent to place a stop transfer restriction upon such Directed Shares, as required by the National Association of Securities Dealers, Inc., to restrict them from sale, transfer, assignment, pledge or before hypothecation for a period of three months following the Closing Datedate of this Agreement. The Underwriters will notify the Company as to which persons will need to be so restricted. Should the Company release, or seek to release, from such restrictions any of the Directed Shares, the Company and CPS and ▇▇▇▇▇ shall cause agrees to reimburse the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take Underwriters for any action inconsistent reasonable expenses (including without limitation legal expenses) they incur in connection with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreementrelease.
(l) To the extent, if any, that the ratings provided with respect The Company will use its best efforts to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents do and perform all things required or the taking of any other actions necessary to be done and performed under this Agreement by the Company prior to or CPS, CPS shall, after the Closing Date or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Additional Closing Date, as the Company case may be, and CPS shall cause the Certificate Insurer to issue the Policy satisfy all conditions precedent to the Trustee for the benefit delivery of the holders of the Certificates in form and substance satisfactory to each UnderwriterShares.
Appears in 1 contract
Sources: Underwriting Agreement (X10 Wireless Technology Inc)
Covenants of the Company. The Company covenants and agrees with (b) To furnish to the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration StatementRepresentative(s), if not effective at the Execution Timewithout charge, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness one signed copy of the Registration Statement in reliance upon Rule 430A. Prior (including exhibits thereto) and for delivery to the termination of the offering of the Certificates, CPS will not file any amendment each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished as the Representative(s) may reasonably request.
(c) At any time when the Prospectus is required by the Securities Act to each be delivered in connection with sales of the Underwriters a copy for Underwritten Securities, the Company will give the Representative(s) notice of its review prior intention to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been or any amendment or supplement to the Prospectus (including any term sheet within the meaning of Rule 434 under the Securities Act), whether pursuant to the Securities Act, the Exchange Act or otherwise, and will furnish the Representative(s) with copies of each such proposed amendment or supplement or other documents proposed to be filed or become effective; a reasonable time in advance of filing.
(ivd) To advise the Representative(s) promptly and, if requested by the Representative(s), to confirm such advice in writing, (i) of any request by the Commission for any amendment of amendments to the Registration Statement or supplement amendments or supplements to the Final Prospectus or for any other additional information; , (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates Securities for offering or sale in any jurisdiction jurisdiction, or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent purposes, and (iii) of the issuance happening of any such event during the period referred to in paragraph (c) above which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order or suspending the suspension effectiveness of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed the Company will make every reasonable effort to be filed obtain the withdrawal or a copy lifting of any document proposed to be filed under such order at the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusearliest possible time.
(ce) The Company will deliver toIf, or upon at any time when the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under by the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Securities Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale sales of any Certificatesof the Underwritten Securities, any event shall occur or condition exist as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at under which they were made when the time the Final Prospectus is delivered to a purchaser, not misleading, oror if, if in the opinion of either such counsel, it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActU.S. laws, [and if appropriate, foreign laws], the Company will promptly notify each prepare and file with the Commission and furnish, at its own expense, to the Underwriters, and to the dealers (whose names and addresses the Representative(s) will furnish to the Company) to which Underwritten Securities may have been sold by the Representative(s) on behalf of the Underwriters and will promptly to any other dealer upon request, either (i) prepare and file, amendments or cause to be prepared and filed, with the Commission an appropriate amendment supplements to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were made when it the Prospectus is so delivereddelivered to a purchaser, be misleading, misleading or so that the Final Prospectus Prospectus, as so amended or supplemented, will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the such U.S. laws of such jurisdictions as the Underwriters may designate [and will maintain such qualifications in effect so long as required for the distribution of the Certificatesif appropriate, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificateslaws].
(f) The Company will endeavor in good faith to qualify the Underwritten Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative(s) shall reasonably request; provided, however, that the Company shall not invest, be obligated to file any general consent to service or otherwise use to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will maintain such qualification in effect for so long as may be required for the proceeds received distribution of the Underwritten Securities. The Company will file such statements and reports as may be required by the Company from its sale laws of each jurisdiction in which the Certificates in such a manner Underwritten Securities have been qualified as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actabove provided.
(g) Until the retirement With respect to each sale of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstUnderwritten Securities, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, but no later than sixteen months after the Effective Date, practicable an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying statement, which shall satisfy the provisions of Section 11(a) of the Securities Act (including and Rule 158 promulgated of the Commission thereunder. 6
(h) Unless otherwise provided in the Terms Agreement, between the date of the Terms Agreement and the later of termination of any trading restrictions and the Closing Time or Date of Delivery, as the case may be, with respect to the Underwritten Securities covered thereby (it being understood that the Representative(s) promptly will notify the Company as to the termination of trading restrictions on such Underwritten Securities), the Company will not without the Representative(s') prior consent, offer to sell, or enter into any agreement to sell, any Securities of the same class or series or ranking on a parity with such Underwritten Securities or, if such Terms Agreement relates to Underwritten Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to reservations or agreements, pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports To use its reasonable best efforts to do and financial statements filed by perform all things required or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables necessary to be marked to show the Trustee's absolute ownership of the Receivables, done and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions performed under this Agreement by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On prior to the Closing Date, the Company Time and CPS shall cause the Certificate Insurer to issue the Policy satisfy all conditions precedent to the Trustee for the benefit delivery of the holders of the Certificates in form and substance satisfactory to each UnderwriterSecurities.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters Investor that:
(a) CPS The Company will use apply the net proceeds from the sale of the Common Shares for research and development efforts, capital expenditures to build-out its best efforts to cause the Registration Statement, if not effective at the Execution Timeexisting facilities, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare general corporate purposes and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereofworking capital.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution Investor shall be the holder of the Certificatesany Common Shares, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished furnish to the Trustee pursuant to the Pooling and Servicing AgreementInvestor, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months as required to be in compliance with the Commission, after the Effective Dateend of each fiscal year, an earnings annual report with respect to such year (including financial statements audited by independent public accountants) and, as soon as practicable, but no later than as required to be in compliance with the Commission, after the end of each quarterly period (other than the last quarterly period) of each fiscal year, a statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a(which need not be audited) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any results of operations of the Certificates are outstandingCompany for such period, the Company will furnish and, to the Underwriters extent not otherwise furnished, promptly upon the filing thereof, (i) copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of any report or document distributed by the Company as to its stockholders generally. The parties acknowledge and agree that the Underwriter may from time to time reasonably requestfiling of such reports on the Commissions Electronic Data Gathering, Analysis Retrieval system shall satisfy the obligations set forth herein.
(kc) On Neither the Company nor any of its officers, directors or before employees will engage in any activity that would jeopardize the Closing Datestatus of the sale of the Common Shares as an exempt transaction under the Securities Act or under the laws of any state in which the offering is made.
(d) The Company acknowledges that the representations, warranties, agreements, undertakings and acknowledgments are made by the Company with the intent that they be relied upon by the Investor in determining whether to subscribe for the Common Shares.
(e) Except as required by law, the Company and CPS and ▇▇▇▇▇ shall cause not issue any press release or file any Report with the respective computer records of Commission discussing any relationship between the Company and CPS and Samco relating to an Investor Party (as defined in Section 8(a)) without the Receivables to be marked to show the Trustee's absolute ownership prior approval of the ReceivablesInvestor, and from and after which approval shall not be unreasonably withheld or delayed. Notwithstanding the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Dateforegoing, the Company and CPS shall cause the Certificate Insurer be permitted to issue such press releases or file such Reports with the Policy to Commission without obtaining the Trustee for the benefit consent of the holders Investor if such press release or Report is required by law or the applicable rules or regulations of the Certificates NASDAQ Global Market or such Report contains disclosure which has been previously approved by Investor for publication in form connection with a previous press release or Report. No later than the trading day immediately following the date hereof, the Company shall issue a press release disclosing the transactions contemplated by this Subscription Agreement. No later than the fourth trading day following the date hereof, the Company will file a Current Report on Form 8-K describing the transactions contemplated by this Subscription Agreement and attaching the press release described in the foregoing sentence. Nothing set forth herein shall preclude the Company from referencing Investor as a purchaser of the Common Shares during conference calls with brokerage firm analysts, as part of investor presentations or in similar forum so long as the substance satisfactory to each Underwriterof such discussions is consistent with the disclosure set forth in such previously-approved press releases or Reports.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatManager:
(a) CPS will use its best efforts During the period in which a prospectus relating to cause the Registration StatementShares is required to be delivered under the Act (whether physically or through compliance with Rules 153 or 172 under the Act, if not effective at or in lieu thereof, a notice referred to in Rule 173(a) under the Execution Time, and any amendment theretoAct), to become effective as soon as reasonably practicable thereafter or, if notify the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at Manager promptly of the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have has become effective or any amendment or supplement to the Prospectus, other than documents incorporated by reference, has been filed; to prepare and file with the Commission, promptly upon the Manager’s request, any amendments or supplements to the Registration Statement or the Prospectus that, in the Manager’s reasonable opinion, may be necessary or advisable in connection with the offer of the Shares by the Manager; and to cause each amendment or supplement to the Prospectus to be filed or become effective; with the Commission as required pursuant to the applicable paragraph of Rule 424(b) under the Act.
(ivb) To pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(c) To promptly advise the Manager, confirming such advice in writing, of any request by the Commission for any amendment of amendments or supplements to the Registration Statement Statement, the Prospectus or supplement to the Final any Permitted Free Writing Prospectus or for any other additional information; (v) information with respect thereto, or if the Company or the Operating Partnership becomes the subject of a proceeding under Section 8A of the issuance by Act in connection with any offering pursuant to the Commission Registration Statement, or of any notice of examination, institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to Commission should enter a stop order suspending the filing thereof with the Commission, CPS will submit to each effectiveness of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed use its commercially reasonable efforts to obtain the lifting or a copy removal of such order as soon as possible; to promptly advise the Manager of any document proposed proposal to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into amend or supplement the Registration Statement or Final the Prospectus, other than documents incorporated by reference, and to provide the Manager and its counsel copies of any such proposed amendment or supplement for review and comment in a reasonable amount of time prior to any proposed filing or use and to not file or use any such amendment or supplement (other than any prospectus supplement relating to the offering of other securities, including, without limitation, the Common Stock) to which the Manager shall have reasonably objected in writing (provided that such objection shall not prohibit the Company from filing such amendment or supplement if the Company’s legal counsel has advised the Company that the filing of such document is required by law).
(cd) The Company will deliver toTo make available to the Manager, or upon as soon as practicable after the order ofdate of this Agreement, the Underwriters, and thereafter from time to time, as many copies of any Preliminary Final Prospectus as time to furnish to the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 ActManager, as many copies of the Final ProspectusProspectus (or of the Prospectus as amended or supplemented at such time if the Company shall have made any amendments or supplements thereto) as the Manager may reasonably request for the purposes contemplated by the Act; in case the Manager is required to deliver (whether physically or through compliance with Rules 153 or 172 under the Act, or as thereafter amended or supplementedin lieu thereof, as a notice referred to in Rule 173(a) under the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requestedAct), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of the Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, 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 Act, the Company will prepare, at its expense, such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be.
(e) To file promptly all reports and documents and any Certificatespreliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act for so long as a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rules 153 or 172 under the Act, or in lieu thereof, a notice referred to in Rule 173(a) under the Act) in connection with any sale of Shares and to provide the Manager at the time of filing thereof a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable amount of time prior to any proposed filing, except for those documents available via ▇▇▇▇▇.
(f) To promptly notify the Manager of the happening of any event shall occur as a result that could require the making of which, any change in the judgment Prospectus as then amended or supplemented so that the Prospectus complies with all applicable United States federal and State securities laws and would not include an untrue statement of the Company material fact or in the reasonable opinion of the Underwriters, it becomes omit to state a material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they are made, not misleading, orand, if it during any period during which a prospectus is necessary at any time required to amend be delivered (whether physically or supplement through compliance with Rules 153 or 172 under the Final Prospectus Act, or in lieu thereof, a notice referred to comply in Rule 173(a) under the Act) in connection with any law or sale of Shares, to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and filefurnish, or cause to be prepared and filedat the Company’s expense, with the Commission an appropriate amendment to the Registration Statement Manager promptly such amendments or supplement supplements to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, may be necessary to reflect any such change in such quantities as the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawManager may reasonably request.
(eg) The Company will To furnish such information as may be required and otherwise to use its commercially reasonable efforts to cooperate with in qualifying the Underwriters in endeavoring to qualify the Certificates Shares for offer and sale under the securities laws of such jurisdictions as the Underwriters Manager may reasonably designate and will to maintain such qualifications in effect so long as required for the distribution of the CertificatesShares; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction in which such qualification where it is not presently qualified or where it would require the Company be subject to qualify to do business taxation as a foreign corporation, file a general or unlimited consent ; and to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for promptly advise the determination Manager of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received receipt by the Company from its sale of any notification with respect to the suspension of the Certificates qualification of the Shares for offer or sale in such a manner as would require the Company, CPS any jurisdiction or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement initiation or threatening in writing of the Certificates, or until any proceeding for such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteepurpose.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to To make generally available to Certificateholders as soon as practicable, but no later than sixteen months after its security holders and the Effective Date, Manager an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying Company, which will satisfy the provisions of Section 11(a) of the Act (including and Rule 158 promulgated thereunder)under the Act.
(i) To apply the net proceeds from the sale of the Shares pursuant to this Agreement and any Terms Agreement in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
(j) So long as At any time that the Company has instructed the Manager to sell Shares pursuant to Section 3(a)(i) but such instructions have not been fulfilled, settled or cancelled, not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for the Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Certificates Company that are outstandingsubstantially similar to the Common Stock or permit the registration under the Act of the offer or sale thereunder, in each case without giving the Manager at least one business day’s prior written notice specifying the nature of the proposed sale and the date of such proposed sale. Notwithstanding the foregoing, the Company will furnish may, without written notice to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such periodManager, (i) as soon as they are availablesubject to Section 3(g) hereof, copies of offer and sell Shares through the Manager pursuant to this Agreement and Common Stock through any reports and financial statements filed by or on behalf Alternative Manager pursuant to any of the Trust or Alternative Distribution Agreements, (ii) file a registration statement on Form S-8 relating to Common Stock that may be issued pursuant to equity plans described in the Company Company’s reports filed with the Commission under the Exchange Act, (iii) issue securities under the Company’s equity compensation plans described in the Company’s reports filed with the Commission under the Exchange Act, (iv) issue shares pursuant to any dividend reinvestment or employee share purchase plan described in the Securities Company’s reports filed with the Commission under the Exchange Act, (v) issue shares upon the exercise of outstanding options, or other outstanding securities, as described in the Company’s reports filed with the Commission under the Exchange Act of 1934, as amended, and (iivi) such additional information concerning issue Common Stock upon the business and financial condition redemption of outstanding OP Units, including profits interests units, in accordance with the Operating Partnership Agreement. In the event that written notice of a proposed transaction prohibited hereunder is provided by the Company pursuant to this Section 4(j), the Manager may suspend activity under this program for such period of time as may be requested by the Underwriter Company or as may from time to time reasonably requestbe deemed appropriate by the Manager.
(k) On or before To obtain the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records written consent of the Company Manager and CPS and Samco relating to the Receivables each Alternative Manager, in each case, not to be marked unreasonably withheld or delayed, prior to show the Trustee's absolute ownership of the Receivablesissuing any free writing prospectus (other than any Permitted Free Writing Prospectus), and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent to retain copies of each Permitted Free Writing Prospectus that is not filed with the Trustee's ownership of such Receivables, other than as expressly permitted by Commission in accordance with Rule 424 and Rule 433 under the Pooling and Servicing AgreementAct.
(l) To not enter into contracts, agreements or understandings between the extent, if any, that Company or the ratings provided Operating Partnership and any person granting such person any registration rights with respect to any of their respective equity securities that are exercisable under the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents Registration Statement or the taking Prospectus or otherwise as a result of a sale of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsShares.
(m) To not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute under the Exchange Act or otherwise, the stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(n) To use its commercially reasonable efforts to cause the Common Stock to maintain its listing on the NYSE.
(o) To advise the Manager promptly after it shall have received notice or obtained knowledge of any information or fact that would materially alter or affect any opinion, certificate, letter or other document provided to the Manager pursuant to Section 6 hereof.
(p) On or prior to the Closing date that the Shares are first sold under this Agreement (and upon recommencement of the offering of the Shares under this Agreement following a Suspension Period) and promptly after each date that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than (a) by an amendment or supplement providing solely for the determination of the terms of the Shares, (b) in connection with the filing of a prospectus supplement that contains solely information relating to Shares sold pursuant to this Agreement or any Alternative Distribution Agreement, (c) in connection with the filing of any Current Reports on Form 8-K (other than any Current Reports on Form 8-K which contain capsule financial information, financial statements, supporting schedules or other financial data) or the incorporation of other documents by reference into the Registration Statement or Prospectus except as set forth in clauses (ii) and (iii) below, or (d) by a prospectus supplement relating solely to the offering of other securities, including, without limitation, other shares of Common Stock), (ii) the Company files an annual report on Form 10-K under the Exchange Act, or an amendment thereto containing financial information, (iii) the Company files a quarterly report on Form 10-Q under the Exchange Act or (iv) the Manager may reasonably request (the date the Shares are first sold under this Agreement, the date of any recommencement of the offering of Shares following a Suspension Period, each date referred to in subclauses (i) through (iv) above and any time of request pursuant to this Section 4(p) are collectively referred to as a “Representation Date”), to furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered as of or promptly after the Representation Date, in form satisfactory to the Manager, to the effect that the statements contained in the certificate referred to in Section 6(e) of this Agreement which was last furnished to the Manager are true and correct as of such Representation Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6(e), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate; provided that the obligation of the Company under this Section 4(p) shall be deferred (i) during any Suspension Period and CPS shall recommence upon the termination of such Suspension Period, and (ii) for any Representation Date occurring at a time at which there is not pending any Placement Notice, which deferral shall continue until the earlier to occur of the date the Company delivers such Placement Notice (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date.
(q) At or promptly after each Representation Date, to furnish or cause the Certificate Insurer to issue the Policy be furnished forthwith to the Trustee for Manager (i) a written opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the benefit Company (“Company Counsel”), or other counsel reasonably satisfactory to the Manager, dated and delivered as of the holders of the Certificates or promptly after such Representation Date, in form and substance reasonably satisfactory to the Manager, of the same tenor as the opinion referred to in Section 6(c) of this Agreement, but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion; provided, however, that in lieu of such opinions for subsequent Representation Dates, Company Counsel may furnish the Manager with a letter to the effect that the Manager may rely on a prior opinion delivered under this Section 4(q) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date); provided further that the obligation of the Company under this Section 4(q) shall be deferred (i) during any Suspension Period and shall recommence upon the termination of such Suspension Period, and (ii) for any Representation Date occurring at a time at which there is not pending any Placement Notice, which deferral shall continue until the earlier to occur of the date the Company delivers such Placement Notice (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date.
(r) At or promptly after each UnderwriterRepresentation Date, Sidley Austin LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, shall deliver a written opinion, dated and delivered as of or promptly after such Representation Date, in form and substance reasonably satisfactory to the Manager; provided that the obligation under this Section 4(r) shall be deferred (i) during any Suspension Period and shall recommence upon the termination of such Suspension Period, and (ii) for any Representation Date occurring at a time at which there is not pending any Placement Notice, which deferral shall continue until the earlier to occur of the date the Company delivers such Placement Notice (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date.
Appears in 1 contract
Covenants of the Company. (a) The Company covenants and agrees with the several Underwriters Underwriter and the Selling Shareholder that:
(ai) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (A) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus containing supplementary prospectus setting forth such other information previously omitted at and the time terms of effectiveness of the offering contemplated by Section 2 hereof, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in reliance upon Rule 430A. Prior writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Certificates, CPS Shares by the Underwriters.
(ii) The Company will not file advise the Underwriter and the Selling Shareholder promptly of any request of the Commission for amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) , or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceeding proceedings for that purpose; , and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS Company will use its best all reasonable efforts to prevent the issuance of any such stop order preventing or suspending the suspension use of any such qualification and, if issued or suspended, the Prospectus and to obtain as soon as possible the withdrawal lifting thereof, if issued.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(ciii) The Company will deliver to, or upon the order of, the UnderwritersUnderwriter, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriters Underwriter during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final ProspectusProspectus in final form, or as thereafter amended or supplemented, as the Underwriters Underwriter may reasonably request; provided, however, that if the Underwriter is required to deliver a prospectus in connection with sales of any shares at any time nine months or more after the date of this Agreement, upon your request, but at the expense of such Underwriter, the Company will prepare and deliver to such Underwriter such copies of an amended and supplemented Prospectus as you may reasonably request. The Company will deliver to the Underwriters Underwriter at or before the Closing Date, two signed four complete conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Underwriter such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)Statement, including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters Underwriter may from time to time reasonably request.
(div) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriter, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly will, at its election, either (iA) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (iiB) prepare and file, or cause to be prepared and filed, file with the Commission (at the expense of the Company) an appropriate filing under the 1934 Exchange Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ev) The Company will cooperate with the Underwriters in endeavoring make generally available to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreementsecurity holders, as soon as such statements and reports are furnished it is practicable to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicabledo so, but no in any event not later than sixteen 15 months after the Effective Dateeffective date of the Registration Statement, an earnings statement of the Trust (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after such Effective Date and satisfying the provisions effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act (including and Rule 158 promulgated thereunder)of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(jvi) So long as any The Company will, for a period of five years from the Certificates are outstandingClosing Date, the Company will furnish deliver to the Underwriters Underwriter copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver filed with any securities exchange pursuant to the Underwriters during requirements of such period, (i) as soon as they are available, copies of any reports and financial statements filed by exchange or on behalf of the Trust or the Company with the Commission pursuant to the Securities Act or the Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestAct.
(kb) On or before The Selling Shareholder covenants and agrees with the Closing Date, Underwriter that:
(i) In order to document the Company Underwriter's compliance with the reporting and CPS and ▇▇▇▇▇ shall cause the respective computer records withholding provisions of the Company Tax Equity and CPS Fiscal Responsibility Act of 1982 and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership Interest and Dividend Tax Compliance Act of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided 1983 with respect to the Certificates transactions herein contemplated, the Selling Shareholder agrees, if required, to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsTreasury Department regulations in lieu thereof).
(mii) On the Closing DateThe Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit stabilization or manipulation of the holders price of any securities of the Certificates in form and substance satisfactory to each UnderwriterCompany.
Appears in 1 contract
Covenants of the Company. THE MID-TIER COMPANY, THE MHC AND THE BANK. The Company covenants Company, the Mid-Tier Company, the MHC and agrees the Bank jointly and severally covenant with the several Underwriters thatAgent as follows:
(a) CPS The Company, the Mid-Tier Company, the MHC and the Bank will use its best efforts prepare and file such amendments or supplements to cause the Registration Statement, if not effective at the Execution TimeProspectus, the Conversion Application, the Holding Company Application, the Members’ Proxy Statement and any amendment thereto, to become effective the Stockholders’ Proxy Statement as soon may hereafter be required by the Commission Regulations or the FRB Regulations or as reasonably practicable thereafter ormay hereafter be requested by the Agent. Following completion of the Subscription Offering and, if held, Community Offering, in the procedure in Rule 430A is followedevent of a Syndicated Offering or a Public Offering, the Company, the Mid-Tier Company, the MHC and the Bank will (i) promptly prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed relating to the results of the Subscription Offering and, if held, the Community Offering, any additional information with respect to the proposed plan of distribution, including the Syndicated Offering or become effective; the Public Offering, if any, and any revised pricing information or (ivii) if no such post-effective amendment is required, will file with the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription Offering and, if held, the Community Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, in either case in a form acceptable to the Agent. The Company, the Mid-Tier Company, the MHC and the Bank will notify the Agent immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment of the Registration Statement, the filing of any supplement to the Prospectus and the filing of any amendment to the Conversion Application or the Holding Company Application, (ii) of the receipt of any comments from the FRB or the Commission with respect to the transactions contemplated by this Agreement or the Plan, (iii) of any request by the Commission or the FRB for any amendment of to the Registration Statement Statement, the Conversion Application or the Holding Company Application or any amendment or supplement to the Final Prospectus or for any other additional information; , (iv) of the issuance by the FRB of any order suspending its approval of the Conversion Application or the Holding Company Application or the initiation of any proceedings, for that purpose or pursuant to Section 8A of the Securities Act, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution initiation of any proceeding proceedings for that purpose; , and (vi) of the receipt by CPS of any notification notice with respect to the suspension of the any qualification of the Certificates Securities for offering or sale in any jurisdiction or jurisdiction. The Company, the initiation of any proceeding for such purpose. CPS Mid-Tier Company, the MHC and the Bank will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior The Company represents and agrees that, unless it obtains the prior consent of the Agent, and the Agent represents and agrees that, unless it obtains the prior consent of the Company, they have not made and will not make any offer relating to the filing thereof Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations, or that would constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission, CPS . Any such free writing prospectus consented to by the Company and the Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has and will submit to each comply with the requirements of Rule 433 of the UnderwritersSecurities Act Regulations applicable to any Permitted Free Writing Prospectus, for its approval after reasonable notice thereofincluding timely Commission filing where required, such approval legending and record keeping. The Company need not treat any communication as a free writing prospectus if it is exempt from the definition of prospectus pursuant to be unreasonably withheld or delayed, a copy clause (a) of any post-- effective amendment to the Registration Statement, any Rule 462(bSection 2(a)(10) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering Securities Act without regard to Rule 172 or 173 of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusSecurities Act Regulations.
(c) The Company will deliver to, or upon the order ofCompany, the UnderwritersMid-Tier Company, the MHC and the Bank will give the Agent notice of their intention to file or prepare any amendment to the Conversion Application, the Holding Company Application or the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus that the Company proposes for use in connection with any Syndicated Offering or Public Offering that differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to timebe filed pursuant to Rule 424(b) of the Securities Act Regulations), as many will furnish the Agent with copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, such amendment or upon the order of, the Underwriters during the period when delivery supplement a reasonable amount of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, time prior to such proposed filing or as thereafter amended or supplementeduse, as the Underwriters case may reasonably request. be, and will not file any such amendment or supplement or use any such prospectus to which the Agent or counsel for the Agent may object.
(d) The Company Company, the Mid-Tier Company, the MHC and the Bank will deliver to the Underwriters at or before the Closing Date, two Agent as many signed copies and as many conformed copies of the Holding Company Application, the Conversion Application and the Registration Statement as originally filed and all amendments of each amendment thereto (including all exhibits filed therewiththerewith or incorporated by reference therein) as the Agent may reasonably request, and will deliver from time to the Underwriters time such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, Prospectus as the Underwriters Agent may from time to time reasonably request.
(de) The Company willDuring the period when the Prospectus is required to be delivered, the Company, the Mid-Tier Company, the MHC and the Bank will comply, at their own expense, with all requirements imposed upon them by the FRB, by the applicable FRB Regulations, as from time to time in force, and will cause by Nasdaq, the Trust to, comply with the 1933 Securities Act, the 1933 Securities Act Regulations, the 1934 Act Exchange Act, and the 1934 Exchange Act Regulations, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the completion continuance of sales or dealing in shares of Common Stock during such period in accordance with the distribution of the Certificates as contemplated in this Agreement provisions hereof and the Final Prospectus. .
(f) If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event or circumstance shall occur as a result of whichwhich it is necessary, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersAgent, to amend or supplement the Registration Statement or Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it becomes is delivered to a purchaser or it is necessary to amend or supplement the Final Prospectus to comply with applicable law and regulation, the Company, the Mid-Tier Company, the MHC and the Bank will forthwith amend or supplement the Registration Statement or Prospectus (in form and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented, the Registration Statement or Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus it is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, misleading or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate law and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reportsregulation, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstMid-Tier Company, the Company will deliver to each Underwriter the annual statements of compliance MHC and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company Bank will furnish to the Underwriters Agent a reasonable number of copies of all reports such amendment or other communications (financial or otherwise) furnished or made available supplement. For the purpose of this subsection, the Company, the Mid-Tier Company, the MHC and the Bank will each furnish such information with respect to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company itself as the Underwriter Agent may from time to time reasonably request.
(kg) On The Company, the Mid-Tier Company, the MHC and the Bank will take all necessary action, in cooperation with the Agent, to qualify the Securities for offering and sale under the applicable securities laws of such states of the United States and other jurisdictions as the FRB Regulations may require and as the Agent and the Company have agreed; provided, however, that neither the Company, the Mid-Tier Company, the MHC nor the Bank shall be obligated to file any general consent to service of process or before to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Closing DateSecurities have been so qualified, the Company, the Mid-Tier Company, the MHC and the Bank will file such statements and reports as may be required by the 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 Registration Statement.
(h) The Company authorizes the Agent and any Selected Dealer to act as agents of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons to be offered Securities having record addresses in the states or jurisdictions set forth in a survey of the securities or “blue sky” laws of the various jurisdictions in which the Offerings will be made (the “Blue Sky Survey”).
(i) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(j) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and CPS consolidated statements of income, comprehensive income, changes in stockholders’ equity and ▇▇▇▇▇ shall cause cash flows, certified by independent public accountants) and, as soon as practicable after the respective computer records end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and CPS the Bank for such quarter in reasonable detail. In addition, such annual report and Samco relating quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the Receivables to be marked to show the Trustee's absolute ownership time of the Receivablesfurnishing thereof to stockholders of the Company.
(k) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent (i) as soon as publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from and after the Closing Date neither time to time, such other information concerning the Company nor CPS nor Samco shall take as the Agent may reasonably request. For purposes of this paragraph, any action inconsistent document filed electronically with the Trustee's ownership of such Receivables, other than as expressly permitted by Commission shall be deemed furnished to the Pooling and Servicing AgreementAgent.
(l) To The Company, the extentMid-Tier Company, if anythe MHC and the Bank will conduct the Conversion in all material respects in accordance with the Plan, that the ratings provided with respect FRB Regulations, the Commission Regulations and all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Certificates by either of the Rating Agencies is conditional Conversion imposed upon the furnishing of documents Company, the Mid-Tier Company, the MHC or the taking of any other actions Bank by the Company or CPS, CPS shall, or shall cause FRB and the Company to, furnish such documents and take any such other actionsCommission.
(m) On The Company, the Closing DateMid-Tier Company, the MHC and the Bank will comply, at their own expense, with all requirements imposed by the Commission, the FRB, and Nasdaq or pursuant to the applicable Commission Regulations, FRB Regulations and Nasdaq regulations as from time to time in force.
(n) The Company will promptly inform the Agent upon its receipt of service with respect to any material litigation or administrative action instituted with respect to the Conversion or the Offerings.
(o) Each of the Company and the Bank will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus and the General Disclosure Package under “How We Intend to Use the Proceeds From the Offering.”
(p) The Company will report the use of proceeds from the Offerings on its first periodic report filed pursuant to Sections 13(a) and 15(d) of the Exchange Act and on any subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act Regulations.
(q) The Company will maintain the effectiveness of the Exchange Act Registration Statement for not less than three years and will comply in all material respects with its filing obligations under the Exchange Act. For three years, the Company will use its best efforts to effect and CPS shall cause maintain the Certificate Insurer listing of the Common Stock on the Nasdaq Global Select Market and, once listed on the Nasdaq Global Select Market, the Company will comply with all applicable corporate governance standards required by the Nasdaq Global Select Market. The Company will file with the Nasdaq Global Select Market all documents and notices required by the Nasdaq Global Select Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Global Select Market.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to issue ensure compliance with FINRA Rules 5130 and 5131.
(s) Other than in connection with any employee benefit plan or arrangement described in the Policy Prospectus and the General Disclosure Package, the Company will not, without the prior written consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities, the Exchange Shares or the Foundation Shares for a period of 90 days following the Closing Time.
(t) During the period beginning on the date hereof and ending on the later of the third anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any claim for indemnification or contribution to which they may be entitled pursuant to Sections 6 or 7 hereof, respectively, made prior to the Trustee third anniversary of the Closing Time, none of the Company, the Mid-Tier Company, the MHC or the Bank shall, without the prior written consent of the Agent, take or permit to be taken any action that could result in the Common Stock, the Mid-Tier Common Stock or the Bank Common Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance, with the exception of the intended loan to the Bank’s ESOP by the Company to enable the ESOP to purchase securities in an amount up to five percent (5%) of the Common Stock that will be sold in the Offerings and issued to the Foundation and to refinance the existing loan to the ESOP.
(u) The Company, the Mid-Tier Company, the MHC and the Bank will comply with the conditions imposed by or agreed to with the FRB in connection with its approval of the Holding Company Application and the Conversion Application.
(v) During the period ending on the first anniversary of the Closing Time, the Bank will comply with all applicable law and regulation necessary for the benefit Bank to continue to be a “qualified thrift lender” within the meaning of 12 U.S.C. Section 1467a(m).
(w) The Company shall not deliver the Securities, the Exchange Shares or the Foundation Shares until the Company, the Mid-Tier Company, the MHC and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived by the Agent.
(x) The MHC, the Mid-Tier Company, the Company or the Bank will furnish to the Agent as early as practicable prior to the Closing Time, but no later than two (2) full business days prior thereto, a copy of the holders latest available unaudited interim consolidated financial statements of the Certificates Mid-Tier Company, which have been read by BDO USA, LLP, as stated in form and substance satisfactory to each Underwriter.their lette
Appears in 1 contract
Covenants of the Company. 8.1 The Company covenants and agrees with the several Underwriters that:Agents that the Company will advise the Agents, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained and will provide evidence satisfactory to the Agents, acting reasonably, of each filing and the issuance of receipts.
8.2 Until the distribution of the Shares has been completed, the Company covenants and agrees with the Agent that the Company will advise the Agents, promptly after receiving notice or obtaining knowledge, of (a) CPS will the issuance by any Regulatory Authority of any order suspending or preventing the use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effectiveOffering Documents; (iib) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates Shares for sale distribution in any jurisdiction of the Qualifying Jurisdictions, the United States or the initiation Other Jurisdictions; (c) the institution, threatening or contemplation of any proceeding for such purpose. CPS any of those purposes; or (d) any requests made by any Regulatory Authority for amendments or supplements to the Final Prospectus or for additional information, and will use its best their commercially reasonable efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany such order is issued, to obtain as soon as possible the withdrawal thereofof the order as quickly as possible.
(b) Prior to the filing thereof 8.3 The Company covenants and agrees with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except Agents that the Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be obligated expected, to qualify cause or result in, or which will constitute, stabilization or manipulation of the Certificates in any jurisdiction in which such qualification would require price of the securities of the Company to qualify to do business as a foreign corporation, file a general facilitate the sale or unlimited consent to service resale of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. Shares or otherwise.
8.4 The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use will apply the proceeds received by from the Company from its issue and sale of the Certificates Shares in such a manner as would require accordance with the Company, CPS or the Trust to register as an investment company disclosure set out under the 1940 Actheading "Use of Proceeds" in the Final Prospectus.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the 8.5 The Company will use its reasonable commercial efforts to promptly do, make, execute, deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnisheddone, made, executed or make availabledelivered, or cause to be made availableall such acts, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs things as each Underwriter the Agents may reasonably require from time to time reasonably request and which for the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement purpose of giving effect to this Agreement and the Final Prospectus Selling Agency Agreement and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and take all actions taken by the Company or CPS to authorize the sale of the Certificates shall such steps as may be reasonably satisfactory in form and substance within its power to each Underwriter.
(i) The Company will cause the Trust implement to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying their full extent the provisions of Section 11(a) of this Agreement and the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Selling Agency Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Agency Agreement
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatUnderwriter as follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriter conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Underwriter orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Underwriter sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters Underwriter may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon furnish the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many Underwriter with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, Supplemented Prospectus relating to the offering of the Senior Notes in such quantities as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters Underwriter may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriter, shall occur, which in the judgment opinion of the Company or of Underwriter's counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriter to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriter a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time when the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleading, or, if it misleading or which will effect any other necessary compliance. In case the Underwriter is necessary at required to deliver a prospectus in connection with the sale of any time to amend or supplement Senior Notes after the Final Prospectus to comply with any law or to file under expiration of the 1934 Act any document which would be deemed to be incorporated by reference period specified in the Registration Statement to comply with the 1933 Act or the 1934 Actpreceding sentence, the Company will promptly notify each Company, upon the request of the Underwriters and Underwriter, will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment furnish to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (Underwriter at the expense of the CompanyUnderwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) an appropriate filing of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the 1934 Act which shall be incorporated by reference in and the Final Prospectus so rules and regulations thereunder; provided, that the Final Prospectus as so amended Company shall not file such documents or supplemented will not, in amendments without also furnishing copies thereof prior to such filing to the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriter and Dewey ▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
(ec) The Company will cooperate endeavor, in cooperation with the Underwriters in endeavoring Underwriter, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Underwriter may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of at least twelve consecutive months beginning after such Effective Date and satisfying 15 days from the provisions date of this Agreement, the Company will not, without the Underwriter's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Senior Notes (except for the Senior Notes issued pursuant to this Agreement). The Underwriter agrees that commercial paper or other debt securities with scheduled maturities of less than one year are not subject to this Section 11(a) of the Act (including Rule 158 promulgated thereunder3(e).
(jf) So long As soon as practicable after the date of this Agreement, and in any of event within the Certificates are outstandingtime prescribed by Rule 424 under the 1933 Act, the Company will furnish to file the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company Final Supplemented Prospectus with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as will advise the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementwill confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in If Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon (properly completed if Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus430A has been used) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) within the prescribed time period and will provide evidence satisfactory to DBSI of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(iiib) when, prior Prior to termination and through the completion of the offering distribution of the CertificatesShares, any amendment to the Registration Statement shall have been filed or become effective; Company will notify you promptly (ivand, if requested by DBSI, will confirm such notice in writing) (i) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vii) of the Company’s intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; the Company shall make every reasonable effort to avoid the issuance of any such stop order, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts If the Commission shall propose or enter a stop order at any time, the Company will, prior to and through the completion of the distribution of the Shares, make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) possible. Prior to and through the filing thereof with the Commission, CPS will submit to each completion of the Underwritersdistribution of the Shares, for its approval after reasonable notice thereof, such approval the Company will not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or a copy of Rule 434) that differs from the preliminary prospectus supplement filed with the Commission on January 20, 2004 or file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which DBSI shall reasonably object in writing after being timely furnished in advance a copy thereof. The Company will provide DBSI with copies of all such amendments, filings and other documents a sufficient time prior to any filing or Final Prospectusother publication thereof to permit DBSI a reasonable opportunity to review and comment thereon.
(c) The Company will deliver tocooperate with the Representative in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of the qualification requirements of) the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or upon the order of, the Underwritersto file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as many copies of any Preliminary Final Prospectus are or may be required to continue such qualifications in effect for so long a period as the Underwriters Representative may reasonably requestrequest for distribution of the Shares. The Company will deliver shall advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or upon trading in any jurisdiction or any initiation of threat of any proceeding for any such purpose, and in the event of the issuance of any order ofsuspending such qualification, registration or exemption, the Underwriters during Company shall use its best efforts to obtain the period when withdrawal thereof at the earliest possible moment.
(d) The Company consents to the use and delivery of a Final the Preliminary Prospectus is required under by the 1933 Act, as many copies Underwriters in accordance with Rule 430 and Section 5(b) of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. Securities Act.
(e) The Company will deliver to maintain in the Underwriters at or before the Closing Date, two Company’s files manually signed copies of the Registration Statement Statement, as initially filed and all amendments thereto thereto, including all consents and exhibits filed therewith, and for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York City time, on the Underwriters may business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(df) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Shares as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time prior to the consummation of the Offering to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable the law.
(eg) The Company will cooperate make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the date of the Prospectus, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the date of the Prospectus, which earnings statement shall comply with the Underwriters in endeavoring to qualify requirements of Section 11(a) of the Certificates for sale under Act and Rule 158 of the laws of such jurisdictions as the Underwriters may designate Rules and Regulations, and will maintain advise you in writing when such qualifications in effect statement has been so long made available.
(h) Prior to the Closing Date, the Company will furnish to the Underwriters, as required for soon as they have been prepared by or are available to the distribution Company, a copy of any unaudited interim financial statements of the CertificatesCompany for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(i) No offering, except sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of DBSI, which consent shall not be unreasonably withheld; provided, however, that the Company may issue (i) shares of its Common Stock upon the exercise of options, (ii) shares of its Common Stock pursuant to stock grants or (iii) options to purchase its Common Stock, to directors, officers and employees of the Company, issued pursuant to employee or director benefit plans, stock option plans or the employee compensation plans.
(j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will not file all documents required to be obligated filed with the Commission pursuant to qualify the Certificates in Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby (including any jurisdiction in which such qualification would require extensions permitted by the Rules and Regulations thereunder).
(k) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange.
(l) The Company has caused each executive officer and director of the Company to qualify furnish to do business as you, on or prior to the date of this agreement, a foreign corporation, file a general letter or unlimited consent to service letters substantially in the form of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for Exhibit B hereto (“Lockup Agreements”).
(m) The Company shall apply the determination net proceeds of its sale of the legality Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare Shares and file such statements, reports, and other documents the application of the proceeds therefrom as are or may be required to continue such qualifications in effect for so long a period as accordance with Rule 463 under the Underwriters may reasonably request for distribution of the CertificatesAct.
(fn) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Shares in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(io) The Company will cause maintain a transfer agent and, if necessary under the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement jurisdiction of incorporation of the Trust covering Company, a period of at least twelve consecutive months beginning after such Effective Date and satisfying registrar for the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)Common Stock.
(jp) So long as The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies price of any reports and financial statements filed by or on behalf securities of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestCompany.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Equity Underwriting Agreement (Pinnacle Entertainment Inc)
Covenants of the Company. 6.1 The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS will To use its best all reasonable efforts to cause maintain the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior and not, at any time, to the termination of the offering of the Certificates, CPS will not file any amendment of to the Registration Statement or amendment Prospectus or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has thereto of which you shall not previously have been advised and furnished to each of the Underwriters with a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and you or your counsel shall have objected or which is not in compliance in all material respects with the 1933 Act and the Rules and Regulations. CPS will promptly , and as soon as the Company is advised thereof, to advise the Underwriters you and confirm this advice in writing (i) when the Registration Statement, if not Statement is effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission or any state securities or “Blue Sky” commissioner or authority of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for Shares or prohibiting the sale in any jurisdiction of the Shares or the initiation or threatening of any proceeding proceedings for any such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will To deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as time after the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to until the Underwriters such number earlier of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during public offering or the period as, in which a prospectus the opinion of counsel for the Underwriter, the Prospectus is required by law to be delivered in connection with sales by the Underwriter or a dealer, without charge, to the Underwriter and to send to the Underwriter, at such office or offices as the Underwriter may designate, as many copies of the Preliminary Prospectus, if any, and Prospectus as the Underwriter may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to the Underwriter will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) To furnish the Underwriter, without charge, one executed copy of the Registration Statement (including exhibits), any amendments thereto and the Prospectus and to furnish the Underwriter, without charge, a reasonable number of conformed copies of the Registration Statement (excluding exhibits), any amendments thereto and the Prospectus.
(d) To furnish the Underwriter with a copy of each proposed amendment or supplement before amending or supplementing the Registration Statement or the Prospectus.
(e) Until the earlier of the completion of the public offering or the period as, in the opinion of counsel for the Underwriter, the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer in connection with the sale of any Certificatesdealer, if any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, which it becomes shall be necessary to amend or supplement the Final Prospectus in order to comply with applicable law or to make the statements therein, in the light of the circumstances existing at when the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time forthwith to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and filefurnish, or cause to be prepared and filedat its own expense, with the Commission an appropriate amendment to the Registration Statement or supplement Underwriter and to dealers (whose names and addresses the Final Prospectus or (ii) prepare and file, or cause Underwriter will furnish to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under to whom Shares may have been sold by the 1934 Act which shall be incorporated by reference in Underwriter and to any other dealers upon request, either amendments or supplements to the Final Prospectus to effect such compliance or so that the Final Prospectus statements in the Prospectus, as so amended or supplemented supplemented, will not, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, be misleading. Neither the Underwriter’s consent to, nor delivery of, any such amendment or so that supplement shall constitute a waiver of any of the Final Prospectus will comply with applicable lawconditions set forth in Section 5.
(ef) The To the extent not available on ▇▇▇▇▇, for a period of three years following the date of this Agreement, to supply to the Underwriter copies of such financial statements and other periodic and special reports as the Company will cooperate may from time to time furnish generally to holders of any class of its securities, and to furnish the Underwriter a copy of each annual report on Form 10-K which it files with the Underwriters in endeavoring to Commission.
(g) To qualify the Certificates Shares for offer and sale under the “blue sky” laws of such jurisdictions (domestic or foreign) as the Underwriters Underwriter may designate request, and will maintain such qualifications in effect so long as required to pay reasonable fees and disbursements of counsel for the distribution of the CertificatesCompany and all other expenses and filing fees in connection therewith; provided, except however, that the Company will shall not be obligated required to qualify the Certificates in file any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation as doing business in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteejurisdiction.
(h) The Company or CPS shall, To apply the net proceeds from the date hereof through sale of the Shares in accordance with the statement made under “Use of Proceeds” in any Preliminary Prospectus or the Prospectus.
(i) To supply the Underwriter with copies of all correspondence to and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested documents issued to and by the Commission in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any registration of the conditions contained Shares under the Act.
(j) To obtain the prior written consent of the Underwriter before the Company directly makes or authorizes any other party to make an offer related to the Shares that would constitute a “free writing prospectus” as defined in this Agreement; and all Rule 405 under the Act.
(k) To ensure that actions directly taken by the Company or CPS to authorize actions authorized by the sale Underwriter or other parties that are authorized by the Company comply with the requirements of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of Rule 433 under the Act (applicable to any Issuer Free Writing Prospectus, if applicable, including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company timely filing with the Commission pursuant to the Securities Exchange Act of 1934, as amendedor retention where required and legending, and (ii) such additional information concerning the business and financial condition of to ensure that actions authorized by the Company as satisfy all conditions of Rule 433 under the Underwriter may from time Act necessary to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records avoid a requirement of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent filing with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementCommission any electronic road show.
(l) To give prompt notice to the extentUnderwriter and, if anyrequested by the Underwriter, that the ratings provided with respect to prepare and furnish to the Certificates Underwriter a corrective Issuer Free Writing Prospectus if at any time following the issuance of an Issuer Free Writing Prospectus directly made by either of the Rating Agencies is conditional upon the furnishing of documents Company, or the taking of any other actions authorized by the Company to be made on its behalf, any event occurs as a result of which such Issuer Free Writing Prospectus, as directly made or CPSauthorized by the Company, CPS shallconflicts with the information in the Registration Statement, any Preliminary Prospectus or shall cause the Company to, furnish such documents and take any such other actionsProspectus.
(m) On For a period commencing on the date hereof and ending on the date immediately following the sixty (60) day anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Underwriter, directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the Act), any Convertible Securities (as defined below), any preferred stock or any purchase rights relating to any of the foregoing. Notwithstanding the foregoing, this Section 6.1(m) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees or consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below), provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than five percent (5%) of the Common Stock issued and CPS shall cause the Certificate Insurer to issue the Policy outstanding immediately prior to the Trustee date hereof and (B) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) issued prior to the date hereof, provided that such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Share Plan that are covered by clause (i) above) have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof (it being understood that any increase in the number of such securities or decrease in the exercise price, exchange price or conversion price that are provided for under the terms of such securities as of the date of this Agreement shall not be deemed an amendment to such securities); (iii) shares of Common Stock or Convertible Securities issued as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital) by the Company or any of its subsidiaries, or as consideration for the benefit acquisition of a business, product or license by the Company or any of its Subsidiaries; and (iv) shares of Common Stock issuable upon conversion of any Convertible Securities issued in connection with the debt financing referred to in Section 5(a) hereof and approved by the Underwriter (each of the holders foregoing in clauses (i), (ii), (iii) and (iv), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Certificates Company or a committee thereof prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in form their capacity as such. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and substance satisfactory under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to each Underwriteracquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatyou as follows:
(a) CPS will use its best efforts to cause It shall have notified you immediately and confirmed the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure notice in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing (i) when the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, thereto shall have become effective; , (ii) when of the Final Prospectus, and receipt of any supplement thereto, shall have been filed with comments from the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment with respect to the Registration Statement shall have been filed or become effective; Statement, (iviii) of any request by the Commission for any amendment of to the Registration Statement or any amendment or supplement to the Final Prospectus or for any other additional information; information relating thereto, and (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order or the suspension of shall at any such qualification and, if issued or suspendedtime be issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company It will deliver to the Underwriters at or before the Closing Dateyou, as soon as available, two signed copies of the Registration Statement as originally filed and all amendments of each amendment thereto including all and two sets of the exhibits filed therewiththereto, and will also deliver to you such number of conformed copies of the Underwriters Registration Statement as originally filed and of each amendment thereto (without exhibits) as you shall require for the purposes contemplated by the Act.
(c) It will deliver to you from time to time, before the Registration Statement becomes effective, such number of copies of the Registration Statement (including as originally filed and any amendments thereto and as soon as the Registration Statement initially becomes effective and thereafter from time to time during the period when the Prospectus is required to be delivered under the Act, such number of copies of the exhibits filed therewith that Prospectus (as amended or supplemented) as you may reasonably be requested), including documents filed under request for the 1934 purposes contemplated by the Act and deemed to be incorporated by reference therein, and of all amendments thereto, as or the Underwriters may from time to time reasonably requestRegulations.
(d) The Company will, and will cause During the Trust to, comply with period when the 1933 Prospectus is required to be delivered pursuant to the Act, the 1933 Act Company will comply, so far as it is able and at its own expense, with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Regulations, the 1934 Act and the 1934 Act Regulationsas from time to time in force, so far as necessary to permit the completion continuance of sales of or dealings in, the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If Securities during the such period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection accordance with the sale of any Certificates, provisions herein and as set forth in the Prospectus.
(e) If any event relating to or affecting the Company or the Mortgages Loans shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, which it becomes is necessary to amend or supplement the Final Prospectus in order to make the Prospectus not misleading in 107 6 the light of the circumstances existing at the time it is delivered to a subscriber, the Company will forthwith prepare and furnish to you, without expense to you, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Prospectus which will amend or supplement the Prospectus so that as amended or supplemented 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 existing at the time the Final Prospectus is delivered to a purchasersubscriber, not misleading, or, if it is necessary at any time to amend or supplement . For the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each purposes of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, subsection the Company will furnish such information with respect to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) themselves as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter you may from time to time reasonably request.
(kf) On or before It will make generally available to the Closing DateCompany's security holders (i.e., the Company and CPS and ▇▇▇▇▇ shall cause holders of Shares) as soon as practicable, but not later than 120 days after the respective computer records close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Section 11(a) of the Act and CPS Rule 158 promulgated thereunder, which need not be certified by independent public accountants unless required by the Act or the Regulations) covering the twelve-month period beginning not later than the first day of the Company's fiscal quarter following the effective date of the Registration Statement. As used in this subsection, the terms "earnings statement" and Samco relating "made generally available to the Receivables to be marked to show Company's security holders" shall have the Trustee's absolute ownership of meanings contained in Rule 158 promulgated under the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementAct.
(lg) To It will, so long as any Securities remain outstanding, furnish directly to you the extentfollowing:
(i) as soon as practicable after the end of each fiscal year, if anyone copy of the Company's annual report, that including therein the ratings provided accountants' report, the balance sheet, the related statements of profit and loss and cash flows for the Company (which need not be audited), together with such accountants' comments and notations with respect thereto in such detail as the Company may customarily receive from such accountants;
(ii) as soon as practicable after the end of each fiscal quarterly period, one copy of a balance sheet of the Company as at the end of such period, setting forth in reasonable detail its financial position, together with related statements of profit and loss and cash flows, none of which statements need be audited, but shall be certified as correct by the Chief Financial Officer of the Company;
(iii) copies of any report, application or documents which the Company shall file with the Commission; and
(iv) as soon as the same shall be sent to holders of Shares, each communication which shall be sent to the Certificates by either holders of Shares, including any other annual or interim report of the Rating Agencies is conditional upon the furnishing of documents Company.
(h) It will deliver to you, from time to time, all supplemental sales material (whether designated solely for broker-dealer use or the taking of any other actions otherwise) proposed to be used or delivered by the Company or CPS, CPS shall, or shall cause in connection with the Company to, furnish such documents and take any such other actionsoffering of Securities.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Managing Dealer Agreement (Capital Alliance Income Trust Real Estate & Investment Trus)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS The Company will (A) use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus containing information previously omitted at in a form approved by the time of effectiveness of Underwriters, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in reliance upon Rule 430A. Prior writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Certificates, CPS Securities by the Underwriters.
(b) The Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters promptly (iA) when the Registration Statement, if not any post-effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; , (ivB) of receipt of any comments from the Commission relating to the Registration Statement, the Prospectus or any documents incorporated by reference therein, (C) of any request by of the Commission for any amendment of the Registration Statement or for supplement to the Final Prospectus or for any other additional information; , and (vD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the suspension use of any such qualification and, if issued or suspended, the Prospectus and to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice lifting thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusissued.
(c) The Company will cooperate with the Underwriters in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Securities.
(d) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. any
(e) The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Securities as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company promptly will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, file with the Commission (at the expense of the Company) an appropriate filing under the 1934 Exchange Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable the law.
(ef) The Company will cooperate with make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution effective date of the CertificatesRegistration Statement, except that an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) Prior to the Closing Date, the Company will not be obligated furnish to qualify the Certificates in Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any jurisdiction in which such qualification would require unaudited interim financial statements of the Company for any period subsequent to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation the period covered by the most recent financial statements appearing in any such jurisdiction to which it is not subject the Registration Statement and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesProspectus.
(fi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates Securities in such a manner as would require the Company, CPS Company or any of the Trust Subsidiaries to register as an investment company under the 1940 Investment Company Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies price of any reports and financial statements filed by or on behalf securities of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestCompany.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with each of the several Underwriters thatthat it will:
(a) CPS will use its best efforts Promptly deliver to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ a Final Prospectus containing information previously omitted at the time copy of effectiveness each of the Registration Statement and all amendments thereto (in reliance upon Rule 430A. Prior each case including copies of all documents (other than exhibits) incorporated in the Prospectus by reference and all exhibits filed therewith), either signed or certified by an officer of the Company, and including a copy of each consent and opinion included therein or filed as an exhibit thereto, either signed or certified by an officer of the Company, and as many unsigned copies of the Registration Statement and such amendments, as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably request. The Company also will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ as soon as possible after the date of this Agreement and thereafter from time to time, during such period of time as a prospectus relating to the termination Bonds is required to be delivered under the Securities Act, as many copies of the offering Prospectus, including any amendments or supplements thereto, as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably request for the purposes of the CertificatesSecurities Act. The copies of the Registration Statement and all amendments thereto, CPS and the copies of the Prospectus, including any amendments or supplements thereto, that are furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ will not file be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) Promptly advise ▇▇▇▇▇▇▇ ▇▇▇▇▇ (i) when any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; , (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; and (viii) of the issuance by the Commission of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement or the institution of any proceeding for that purpose; and (vi) proceedings therefor of which the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purposeCompany shall have received notice. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible secure the withdrawal prompt removal thereof.
(b) Prior . The Company will neither file nor use any amendment or supplement to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusthe Prospectus relating to the Bonds to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters shall object.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Pay all expenses incident to the Underwriters at or before performance of its obligations under this Agreement (except as set forth in the Closing Datelast sentence of Section 5(d) hereof), two signed copies including (i) the preparation and filing by it of the Registration Statement and all amendments thereto including all exhibits filed therewiththe Prospectus, (ii) the preparation, execution and will deliver delivery of this Agreement, (iii) the preparation, execution, filing and recording of the Supplemental Indentures, (iv) the corporate and regulatory actions precedent to the issuance and delivery of the Bonds, (v) the issuance and delivery of the Bonds, (vi) the rating of the Bonds by one or more “nationally recognized statistical rating organizations” (as defined for purposes of Rule 436(g) of the Securities Act Regulations, (vii) the fees and disbursements of the Company’s counsel and accountants, (viii) except as provided in Section 5(d) hereof, the printing and delivery to the Underwriters such number of copies reasonable quantities of the Registration Statement Statement, the Prospectus and any amendment or supplement thereto, (including such number of copies ix) the fees and expenses of the exhibits filed therewith that may reasonably be requested)Trustee and (x) the qualification of the Bonds for offering and sale under state securities laws, including documents filed under the 1934 Act and deemed fees, not to be incorporated by reference thereinexceed $3,500, and disbursements of all amendments thereto, as counsel for the Underwriters may from time to time reasonably requestin connection with such qualification and blue sky surveys relating thereto.
(d) The Company willForthwith, at its expense, prepare and will cause furnish to ▇▇▇▇▇▇▇ ▇▇▇▇▇, during such period of time (not exceeding nine months) after the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion date of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which as a prospectus relating to the Bonds is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any CertificatesSecurities Act, if (i) any event shall occur as a result of whichwhich it is necessary, in the judgment opinion of the Company and its counsel or in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading, in the light of then existing circumstances, or (ii) it becomes shall be necessary to amend or supplement the Final Registration Statement or the Prospectus to comply with the Securities Act or the Securities Act Regulations or the Exchange Act or the Exchange Act Regulations, a reasonable number of copies of a supplement or an amendment to the Prospectus that will supplement or amend the Prospectus so that as so supplemented or amended it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then existing at the time the Final Prospectus is delivered to a purchasercircumstances, not misleading, or, if misleading or it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to will comply with the 1933 Securities Act or the 1934 Act, Securities Act Regulations or the Company will promptly notify each Exchange Act or the Exchange Act Regulations. In case any of the Underwriters and will promptly either (i) prepare and file, or cause shall be required to be prepared and filed, with the Commission an appropriate amendment deliver a prospectus relating to the Registration Statement or supplement Bonds after the expiration of nine months from the date of this Agreement, the Company, upon the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ furnish to the Final Prospectus or (ii) prepare and fileUnderwriters, or cause to be prepared and filed, with the Commission (at the expense of the CompanyUnderwriters, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Prospectus, complying with Section 10(a) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawSecurities Act.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make Make generally available to Certificateholders its security holders, as soon as practicable, but no later than sixteen months after the Effective Date, an earnings earning statement of the Trust (which need not be audited) covering a period of at least twelve consecutive 12 months beginning after such Effective Date and satisfying on the first day of the Company’s fiscal quarter next succeeding the effective date of the Registration Statement that will satisfy the provisions of Section 11(a) of the Securities Act (including Rule 158 promulgated thereunderof the Securities Act Regulations).
(jf) So long Furnish such proper information as any may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the securities or blue sky laws of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) jurisdictions as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇▇▇ shall cause ▇▇▇▇▇ may reasonably designate, and file and make such statements or reports as are or may be required by the respective computer records laws of such jurisdictions; provided, however, that the Company and CPS and Samco relating shall not be required to qualify as a foreign corporation or dealer in securities or to file any consents to service of process under the Receivables to be marked to show the Trustee's absolute ownership laws of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreementjurisdiction.
(lg) To Not to sell any additional First Mortgage Bonds without the extent, if any, that consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ until the ratings provided with respect earlier to occur of (i) the Time of Delivery and (ii) the date of the termination of the fixed price offering restrictions applicable to the Certificates by either Underwriters. ▇▇▇▇▇▇▇ ▇▇▇▇▇ agrees to notify the Company of such termination if it occurs prior to the Rating Agencies is conditional upon Time of Delivery. All fees and disbursements of counsel for the furnishing Underwriters (exclusive of documents or the taking fees and expenses of any other actions such counsel that are to be paid by the Company as set forth in Section 5(c)(x) hereof) shall be paid by the Underwriters; provided, however, that if this Agreement shall be terminated in accordance with the provisions of Section 6, 7 or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date9 hereof, the Company shall reimburse the Underwriters for their out-of-pocket costs and CPS shall cause expenses, including the Certificate Insurer to issue the Policy to the Trustee reasonable fees and disbursements of counsel for the benefit Underwriters. The Company shall not be required to pay any amount for any expenses of the holders Underwriters except as provided in the preceding sentence. The Company shall not in any event be liable to any of the Certificates in form and substance satisfactory to each UnderwriterUnderwriters for damages on account of the loss of anticipated profits.
Appears in 1 contract
Covenants of the Company. The Company and the Guarantors covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in If Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon (properly completed if Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus430A has been used) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) within the prescribed time period and will provide evidence satisfactory to Bear ▇▇▇▇▇▇▇ of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(iiib) when, prior Prior to termination and through the completion of the offering distribution of the CertificatesNotes, any amendment to the Registration Statement shall have been filed or become effective; Company will notify you promptly (ivand, if requested by Bear ▇▇▇▇▇▇▇, will confirm such notice in writing) (i) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vii) of the Company’s intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; the Company shall make every reasonable effort to avoid the issuance of any such stop order, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts If the Commission shall propose or enter a stop order at any time, the Company will, prior to and through the completion of the distribution of the Notes, make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) possible. Prior to and through the filing thereof with the Commission, CPS will submit to each completion of the Underwritersdistribution of the Notes, for its approval after reasonable notice thereof, such approval the Company will not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or a copy Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement or file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which Bear ▇▇▇▇▇▇▇ shall reasonably object in writing after being timely furnished in advance a copy thereof. The Company will provide Bear ▇▇▇▇▇▇▇ with copies of all such amendments, filings and other documents a sufficient time prior to any filing or Final Prospectusother publication thereof to permit Bear ▇▇▇▇▇▇▇ a reasonable opportunity to review and comment thereon.
(c) The Company will deliver to, or upon shall comply with the order of, Securities Act and the Underwriters, from time Exchange Act to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies permit completion of the Final Prospectusdistribution as contemplated in this Agreement, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Notes is required by law to be delivered by an Underwriter under the Securities Act or dealer the Exchange Act in connection with the sale sales of any CertificatesNotes, any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the reasonable judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time of delivery to the Final Prospectus is delivered to a purchaser, not misleading, oror if to comply with the Securities Act, if the Exchange Act or the Rules and Regulations it is shall be necessary at any time prior to the consummation of the Offering to amend or supplement the Final Prospectus to comply with any law or Registration Statement, or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActProspectus or in any amendment thereof or supplement thereto, the Company will notify you promptly notify each of and prepare and file with the Underwriters Commission, subject to Section 5(a) hereof, an appropriate amendment or supplement (in form and substance reasonably satisfactory to Bear ▇▇▇▇▇▇▇) which will correct such statement or omission or which will effect such compliance and will promptly either (i) prepare and file, or cause use its reasonable efforts to be prepared and filed, with the Commission an appropriate have any amendment to the Registration Statement or supplement declared effective as soon as possible.
(d) The Company will promptly deliver to each of you and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (the Final Prospectus or (ii“Underwriter’s Counsel”) prepare and file, or cause to be prepared and filed, with the Commission (at the expense a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company) an appropriate filing under ’s files manually signed copies of such documents for at least five years after the 1934 Act which shall be date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Final Registration Statement and Prospectus so that or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York City time, on the Final Prospectus as so amended or supplemented business day next succeeding the date of this Agreement and from time to time thereafter, the Company will not, in furnish the light Underwriters with copies of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawin New York City in such quantities as you may reasonably request.
(e) The Company will cooperate with consents to the use and delivery of the Preliminary Prospectus by the Underwriters in endeavoring accordance with Rule 430 and Section 5(b) of the Securities Act.
(f) The Company will use its reasonable efforts, in cooperation with Bear ▇▇▇▇▇▇▇, at or prior to the time of effectiveness of the Registration Statement, to qualify the Certificates Notes for offering and sale under the securities laws relating to the offering or sale of the Notes of such jurisdictions jurisdictions, domestic or foreign, as the Underwriters Bear ▇▇▇▇▇▇▇ may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actprocess.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders and to the Underwriters as soon as practicable, but no in any event not later than sixteen twelve months after the Effective Dateeffective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date Company and satisfying the provisions of Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including including, at the option of the Company, Rule 158 promulgated thereunder158).
(jh) During the period of 90 days from the date hereof, without the prior written consent of Bear ▇▇▇▇▇▇▇, which consent shall not be unreasonably withheld, the Company will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, pledge or otherwise dispose of (or enter into any transaction or duties which is designed to, or could be expected to, result in the disposition by any person at any time in the future) any debt securities of the Company or any Subsidiary with terms substantially similar (including having equal rank) to the Notes (other than the Notes); provided, however, nothing contained in this Section 4(h) shall obligate the Company to retain Bear ▇▇▇▇▇▇▇ as its underwriter.
(i) So long as any of Notes are outstanding and so long as the Certificates are outstandingIndenture so requires, the Company will furnish to the Underwriters you copies of all reports or other communications (financial or otherwiseother) furnished to security holders or made available from time to Certificateholderstime published or publicly disseminated by the Company, and will deliver to you (unless filed on the Underwriters during such period, ▇▇▇▇▇ System) (i) as soon as they are available, copies of any reports and reports, financial statements and proxy or information statements furnished to or filed by or on behalf of the Trust or the Company with the Commission pursuant to or any national securities exchange on which any class of securities of the Securities Exchange Act of 1934, as amended, Company is listed; and (ii) such additional non-privileged information concerning the business and financial condition of the Company as the Underwriter you may from time to time reasonably requestrequest for purposes not adverse to the interests of the Company (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided, that the Company may require you to furnish a reasonable confidentiality agreement regarding any confidential non-public information prior to your receipt thereof.
(j) The Company will apply the net proceeds from the sale of the Notes as set forth under the caption “Use of Proceeds” in the Prospectus.
(k) On The Company, during the period when the Prospectus is required to be delivered under the Securities Act or before the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby (including any extensions permitted by the Rules and Regulations thereunder).
(l) The Company will use its reasonable efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company.
(m) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation (“S&P”) and ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) to reaffirm their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes.
(n) Up to and through the Closing Date, the Company has not and CPS will not (and ▇▇▇▇▇ shall has not permitted its affiliates to, and will cause its affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the respective computer records stabilization or manipulation of the price of any security of the Company and CPS and Samco relating to facilitate the Receivables to be marked to show the Trustee's absolute ownership sale or resale of the Receivables, Notes and from and after the Closing Date neither the Company nor CPS nor Samco shall any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action inconsistent with prohibited by Regulation M under the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementExchange Act.
(lo) To the extent, if any, that the ratings provided with respect The Company will use its best efforts to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents do and perform all things required to be done or the taking of any other actions performed under this Agreement by the Company or CPS, CPS shall, or shall cause and the Company to, furnish such documents and take any such other actions.
(m) On Guarantors prior to the Closing Date, the Company and CPS shall cause the Certificate Insurer Date to issue the Policy satisfy all conditions precedent to the Trustee for the benefit delivery of the holders of the Certificates in form and substance satisfactory to each UnderwriterNotes.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Entertainment Inc)
Covenants of the Company. SECTION 1. The Company covenants and agrees agrees, so long as any of the bonds of Series LL are outstanding or until provision shall have been made for the redemption or payment thereof by the deposit with the several Underwriters thatTrustee of money necessary to effect such redemption or payment, as follows:
(a) CPS will use its best efforts to cause the Registration StatementThe Company, if not effective during or at the Execution Timeclose of the calendar year 2003, and any amendment theretoduring or at the close of each calendar year thereafter, shall charge against the income for such calendar year and place to become effective as soon as reasonably practicable thereafter orthe credit of a "depreciation reserve account" to be kept on its books, if the procedure in Rule 430A is followedgreater of the following two amounts: (i) the amount of $1,550,000, prepare and timely file with or (ii) an amount equal to 2 1/2% of the Commission under Rule 424(bsum of
(i) a Final Prospectus containing information previously omitted the aggregate principal amount of all bonds which, at the time such credit is placed to said "depreciation reserve account", shall be outstanding and shall have been outstanding under the Mortgage as supplemented for a period of effectiveness not less than six (6) months, or which at such time shall have been outstanding under the Mortgage supplemented for less than six (6) months, if such bonds shall have been issued, or the proceeds thereof shall have been used, directly or indirectly, for or on account of the Registration Statement in reliance upon Rule 430A. Prior to the termination pledge, acquisition, exchange, cancellation, payment, refundment, redemption or discharge at, before or after maturity of the offering bonds of any series theretofore issued under the Mortgage or of any "underlying bonds" or "specified obligations" as defined in Section 4 of Article III of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effectiveMortgage; and
(ii) when the Final Prospectusaggregate principal of all indebtedness of the Company secured by a mortgage lien upon the properties or assets of the Company, which is a lien superior to the lien of the Mortgage, except (A) any such mortgage indebtedness the evidences of which shall then be pledged with the Trustee under the provisions of the Mortgage or pledged with the Trustee under any mortgage constituting a lien superior to the lien of the Mortgage on any part of the properties or assets of the Company, and (B) any supplement thereto, such mortgage indebtedness for the payment or redemption of which the necessary moneys shall have been filed deposited with the Commission pursuant Trustee under the Mortgage securing the same; provided, however, that (1) the amount required by this subparagraph (a) to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment be placed to the Registration Statement shall have been filed or become effective; (iv) credit of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus such "depreciation reserve account" in or for any other additional information; (v) calendar year shall be deemed to include and not to be in addition to amounts which, by the provisions of the issuance by Mortgage, the Commission Company is required to add to any depreciation reserve account for such year, (2) nothing in this subparagraph (a) shall prevent the Company from crediting to such "depreciation reserve account", during or at the close of any stop order suspending calendar year, an amount greater than the effectiveness of the Registration Statement or the institution of any proceeding amount required by this subparagraph (a) for that purpose; such year, and (vi3) the Company may, from time to time, during each such calendar year, charge against such "depreciation reserve account" the cost of depreciable property retired by it during such year, including the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification andcost, if issued or suspendedany, to obtain as soon as possible the withdrawal thereofof dismantling such retired property, less any salvage credits applicable thereto.
(b) Prior The Company after it shall have issued bonds of Series LL in the aggregate principal amount of $50,000,000, shall not request the Trustee
(i) to authenticate bonds of any series under the Mortgage
(A) pursuant to Section 2 of Article III of the Mortgage for or on account of the acquisition and cancellation, or of the payment, cancellation, redemption or other discharge at, before or after maturity, affected prior to January 1, 1951, of any bonds of any series theretofore issued under the Mortgage, or
(B) pursuant to Section 4 of Article III of the Mortgage, for or on account of the pledge, acquisition, exchange, cancellation, payment, refundment, redemption or discharge effected prior to January 1, 1951, of "underlying bonds" or "specified obligations" mentioned in said Section 4, or
(C) pursuant to Section 5 of Article III of the Mortgage, for or in respect of expenditures made prior to January 1, 1951, for or on account of "permanent property", or
(ii) to pay to the filing thereof with Company any cash pursuant to Section 6 of said Article III for or on account of any transactions mentioned in clause (A) or clause (B) of subdivision (i) of this subparagraph (b) or for or in respect of any expenditures mentioned in clause (C) of subdivision (i) of this subparagraph (b). Neither shall the Commission, CPS will submit Company request the Trustee to each authenticate bonds of any series under the provisions of Section 4 of Article III of the UnderwritersMortgage or to pay the Company any moneys under Section 6 of said Article III or under Article IX of the Mortgage for or on account of the payment, for its approval discharge and cancellation effected on or after reasonable notice thereofJanuary 1, such approval not to be unreasonably withheld 1944, at, before or delayed, a copy after maturity of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering Refunding Mortgage Five Per Cent Gold Bonds of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusCompany, dated September 1, 1897, due September 1, 1947.
(c) The Company will deliver to, or upon shall not request the order of, the Underwriters, from time Trustee to time, as many copies authenticate bonds of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required series under the 1933 Act, as many copies of the Final Prospectus, Mortgage or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to pay to the Underwriters at Company any cash deposited with or before received by the Closing DateTrustee under the Mortgage (except cash deposited with or received by the Trustee as and for a sinking fund for any series of bonds which have been or may hereafter be issued under the Mortgage), two signed copies unless the Company as a part of the Registration Statement and all amendments thereto including all exhibits filed therewithsuch request, and will deliver in addition to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including all other documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law the Mortgage to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in request, shall deliver to the Registration Statement Trustee a certificate or certificates, signed by the President or the Executive Vice President or the Chief Financial Officer or a Vice President and by the Final Prospectus and in order to evidence the accuracy Treasurer or completeness of any an Assistant Treasurer of the conditions contained Company (i) showing, in this Agreement; and all actions taken case such request is for the authentication of bonds pursuant to Section 5 of Article III of the Mortgage or for the payment of cash pursuant to Section 6 of said Article III for or in respect of expenditures made by the Company on or CPS after January 1, 1951, for or on account of "permanent property":
(A) the total amount of expenditures (reduced to authorize the sale extent required, if any, by the provisions of clause (G) of this subdivision (i)) made on or after January 1, 1951, for or on account of "permanent property";
(B) the original cost of all properties, subject to the lien of the Certificates Mortgage at any time on or after January 1, 1951, replaced or retired on or after January 1, 1951, less, if any such property shall be reasonably satisfactory in form have been released from the lien of the Mortgage pursuant to any applicable provision of the Mortgage and substance to each Underwriter.obtain such release cash shall have been deposited with the Trustee, the amount of such cash;
(iC) The Company will cause an amount equal to the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement sum of (1) 133-1/3% of the Trust covering a period aggregate principal amount of at least twelve consecutive months beginning bonds which have been authenticated after January 1, 1951, pursuant to Section 5 of Article III of the Mortgage for or on account of such Effective Date and satisfying expenditures made on or after January 1, 1951, plus (2) 133-1/3% of the aggregate amount of deposited cash withdrawn after January 1, 1951, pursuant to the provisions of Section 11(a6 of Article III of the Mortgage for or in respect of such expenditures made on or after January 1, 1951, plus (3) 133-1/3% of the aggregate amount of excess of the nature described in subdivision (2) of Section 4 of Article III of the Act Mortgage eliminated or compensated, as in said subdivision (including Rule 158 promulgated thereunder).2) provided, for or in respect of expenditures of the Company for or on account of "permanent property" during said period commencing January 1, 1951;
(jD) So long as any an amount equal to 100% of the Certificates are outstanding, aggregate amount of moneys withdrawn by the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act provisions of 1934, as amended, and (ii) such additional information concerning the business and financial condition Article IX of the Company as the Underwriter may from time to time reasonably request.Mortgage on or after January 1, 1951, for or in respect of expenditures made for or on account of "permanent property";
(kE) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating an amount equal to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extentexcess, if any, of the amount shown pursuant to clause (A) above over the sum of the amounts shown pursuant to clauses (B), (C) and (D) above;
(F) that, for a period of twelve (12) consecutive calendar months (to be selected by the Company) ending within ninety (90) days next preceding such request, the "net earnings of the Company" shall have been at least twice the amount of the annual interest requirement of all "mortgage and prior lien debt of the Company";
(G) that the ratings provided with amount of the expenditure, if any, included in the expenditures set forth in clause (A) above in respect of any particular "permanent property", which at the time of its acquisition was subject to the Certificates by either lien of any mortgage existing or placed thereon at the time of its acquisition, does not exceed an amount equal to the excess, if any, of the Rating Agencies is conditional upon value (determined as provided in the furnishing first paragraph of documents Section 8 of Article III of the Mortgage) of such particular "permanent property" at the time of acquisition of such property over 133-1/3% of the principal amount of all indebtedness secured by all such mortgages existing or placed on such particular property at the taking time of the acquisition thereof, and that the amount of the expenditure, if any, included in the expenditures set forth in clause (A) above in respect of any other actions by particular "permanent property", which at the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take time of its acquisition was not subject to any such other actions.
(m) On the Closing Datelien, the Company and CPS shall cause the Certificate Insurer to issue the Policy does not exceed an amount equal to the Trustee for value (determined as provided in the benefit first paragraph of Section 8 of Article III of the holders Mortgage) of such particular "permanent property" at the Certificates in form and substance satisfactory to each Underwriter.time of acquisition of such property;
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters, and solely with respect to Section 4(b), the Underwriters covenant and agree with the Company, that:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (A) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Final Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination on Rules 430A or 430C of the offering of the Certificates, CPS will Rules and Regulations and (B) not file any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed distribute an amendment or supplement to the General Disclosure Package or the Prospectus of which any of the Underwriters Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objects and objected in writing or which is not in compliance with the 1933 Act Rules and Regulations. CPS .
(b) The Company and each of the Underwriters will promptly not make any offer relating to the Securities that would constitute a "free writing prospectus" (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act.
(c) The Company will advise the Underwriters Representative promptly (iA) when the Registration Statement, if not Statement or any post-effective at the Execution Time, and any amendment thereto, thereto shall have become effective; , (iiB) when of receipt of any comments from the Final ProspectusCommission, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (ivC) of any request by the Commission for any amendment of the Registration Statement or for supplement to the Final General Disclosure Package or the Prospectus or for any other additional information; , (vD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the institution of any proceeding proceedings for that purpose; and purpose or pursuant to Section 8A of the Act, (viE) of the receipt issuance by CPS any state securities commission of any notification with respect to order for the suspension of the qualification of the Certificates shares of Common Stock for offering or sale in any jurisdiction or of the initiation initiation, or the threatening, of any proceeding for such that purpose, and (F) of the happening of any event during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement, the General Disclosure Package or the Prospectus untrue or that requires the making of any changes in the Registration Statement, the General Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. CPS The Company will use its reasonable best efforts to prevent the issuance of any such stop order or and to obtain promptly the suspension of any such qualification andlifting thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereofissued.
(bd) Prior to the filing thereof The Company will cooperate with the CommissionRepresentative in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, CPS will submit file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to each qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusSecurities.
(ce) The Company will deliver to, or upon the order of, the UnderwritersRepresentative, from time to time, as many copies of any the Preliminary Final Prospectus as the Underwriters Representative may reasonably request. The Company will deliver to, or upon the order of, the Underwriters Representative during the period when delivery of a Final Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the 1933 Act, as many copies of the Final ProspectusProspectus in final form, or as thereafter amended or supplemented, as the Underwriters Representative may reasonably request. The Company will deliver to the Underwriters Representative at or before the Closing Date, two four signed copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith, and will deliver to the Underwriters Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters Representative may from time to time reasonably request.
(df) The Company will, and will cause the Trust to, shall comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Certificates Units as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificatesdealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actlaw, the Company will promptly notify each of the Underwriters and will promptly either (i) shall prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(eg) The If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company will cooperate or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or to make the statements therein not conflict with the Underwriters information contained in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the CertificatesRegistration Statement then on file, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which if it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from necessary at any time to time, prepare and file such statements, reports, and other documents amend or supplement the General Disclosure Package so as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs firstcomply with any applicable law, the Company will deliver to each Underwriter shall promptly prepare, file with the annual statements of compliance Commission (if required) and the annual independent certified public accountant's reports furnished furnish to the Trustee pursuant Underwriters and any dealers an appropriate amendment or supplement to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the TrusteeGeneral Disclosure Package.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders, as soon as practicableit is practicable to do so, but no in any event not later than sixteen 15 months after the Effective Date, an earnings statement of the Trust (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after such the Effective Date and satisfying Date, which earnings statement shall satisfy the provisions requirements of Section 11(a) of the Act (including and Rule 158 promulgated thereunder)under the Act and shall advise you in writing when such statement has been so made available.
(i) Prior to the Closing Date, the Company shall furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) So long Except for securities issued in the Private Placement (as any of the Certificates are outstandingdefined below), the Company hereby agrees that, until the Company consummates a Business Combination, it shall not issue any shares of Common Stock or any options or other securities convertible into Common Stock, or any shares of preferred stock which participate in any manner in the Trust Account or which vote as a class with the Common Stock on a Business Combination.
(k) The Company shall use its best efforts to effect and maintain the listing of the Securities on the American Stock Exchange ("AMEX") until the consummation of a Business Combination.
(l) The Company shall apply the net proceeds of its sale of the Securities as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(m) The Company shall maintain a transfer agent, warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and Warrants, as applicable.
(n) The Company shall not take, directly or indirectly, any action that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(o) For a period of four years from the Effective Date, or such earlier time upon which the Company is required to be liquidated, the Company shall maintain the registration of the Securities under the provisions of the Exchange Act (except in connection with a going private transaction).
(p) For a period of four years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated (or the Company ceases public reporting as a result of a going private transaction), the Company, at its expense shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company's financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information and the filing of the Company's Form 10-Q quarterly report.
(q) The Company shall not consummate a Business Combination with any Initial Stockholder, or officer or director of the Company, or any entity which is affiliated with any Initial Stockholder or officer or director of the Company without first obtaining an opinion from an independent investment banking firm that such Business Combination is fair to the Company's stockholders from a financial point of view.
(r) Except as described in the Registration Statement, General Disclosure Package and the Prospectus, the Company shall not pay any Initial Stockholder or any of their affiliates or family members any fees or compensation from the Company, for services rendered to the Company prior to, or in connection with, the consummation of an initial Business Combination; provided that the Initial Stockholders shall be entitled to reimbursement from the Company, subject to approval by the Board of Directors of the Company, for their reasonable documented out-of-pocket expenses incurred in connection with seeking and consummating an initial Business Combination.
(s) The Company shall take all necessary actions to ensure that, upon and at all times after the effectiveness of the Registration Statement, it will be in compliance with (i) all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect and applicable to it and shall take such steps as are necessary to ensure that it will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act which have been proposed but which are not currently in effect upon the effectiveness of such provisions to the extent they are applicable to the Company and (ii) the requirements of the American Stock Exchange's AMEX Company Guide if the Company's securities are listed on the AMEX.
(t) For a period of four years from the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company, upon request from the Representative, shall furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, Representative (i) as soon as they are available, copies of any reports and such financial statements filed by or on behalf of the Trust or and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission pursuant and from time to the Securities Exchange Act time furnishes generally to holders of 1934, as amendedany such class of its securities, and (ii) such additional documents and information concerning with respect to the business Company and financial condition the affairs of any future subsidiaries of the Company as the Underwriter Representative may from time to time reasonably request, in each such case subject to the execution of a confidentiality agreement reasonably satisfactory to the Company.
(ku) On For a period equal to four years from the date hereof or before until such earlier time upon which the Company is required to be liquidated the Company shall not take any action or actions which may prevent or disqualify the Company's use of Form S-1 (or other appropriate form of the Commission) for the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants, under the Act (except in connection with a going private transaction).
(v) In the event any person or entity (excluding attorneys, accountants and similar service providers that are not affiliated or associated with FINRA and are not brokers or finders) is engaged, in writing, to assist the issuer in finding or evaluating a merger candidate, the Company shall provide the following to FINRA and the Representative prior to consummation of an initial Business Combination: (i) copies of agreements governing said services (which details or agreements may be appropriately redacted to account for privilege or confidentiality concerns), and (ii) a justification as to why the person or entity providing the merger and acquisition services should not be considered an "underwriter or related person" with respect to the Company's initial public offering as such term is defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement shall be made in the proxy statement which the Company shall file for purposes of soliciting stockholder approval for the initial Business Combination.
(w) The Company shall maintain a system of internal accounting controls 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 in order to permit preparation of financial statements in accordance with generally accepted accounting principles 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 existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(x) The Company has, as of the date hereof, retained its independent public accountants to audit the financial statements of the Company as of the Closing Date (the "Audited Financial Statements") reflecting the receipt by the Company of the proceeds of the initial public offering. As soon as the Audited Financial Statements become available, the Company shall promptly file a Current Report on Form 8-K with the Commission (the "Closing 8-K"), which Report shall contain the Company's Audited Financial Statements. In addition, upon receipt of the proceeds from the sale of any Option Units after the Closing Date, the Company shall promptly file a second or amended Current Report on Form 8-K with the Commission, which Report shall provide updated financial information to reflect the receipt of such additional proceeds. At or prior to the commencement of separate trading of the Warrants and CPS Common Stock, the Company shall promptly issue a press release announcing that separate trading of the Warrants and ▇▇▇▇▇ Common Stock will begin on the AMEX.
(y) The Company shall cause the respective computer records advise FINRA if it is aware that any 5% or greater securityholder of the Company and CPS and Samco relating to becomes an affiliate or associated person of a FINRA member participating in the Receivables to be marked to show the Trustee's absolute ownership distribution of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementSecurities.
(lz) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the The Company or CPS, CPS shall, or shall cause as set forth in the Company to, furnish such documents Trust Agreement and take any such other actions.
(m) On disclosed in the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.Prospe
Appears in 1 contract
Sources: Underwriting Agreement (Cherry Tree Acquisition Corp.)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thathereby agrees:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters To (i) when advise the Registration StatementInitial Purchaser promptly after obtaining knowledge (and, if not effective at requested by the Execution TimeInitial Purchaser, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (ivconfirm such advice in writing) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (vA) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement Notes for offer or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction jurisdiction, or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent purpose by any state securities commission or other regulatory authority, or (B) the issuance happening of any such stop order event that makes any statement of a material fact made in the Time of Sale Circular, any Offering Circular or any Supplemental Offering Material untrue or that requires the suspension making of any such qualification and, if issued additions to or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of changes in the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus Offering Circular in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or(ii) use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, if it is necessary and (iii) if, at any time time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish the Initial Purchaser, without charge, as many copies of the Preliminary Offering Circular and the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, (ii) promptly prepare the Pricing Supplement, in form and substance satisfactory to the Initial Purchaser, and to furnish to the Initial Purchaser as soon as practicable but no later than one hour prior to the Time of Sale as many copies of the Pricing Supplement as the Initial Purchaser may reasonably request, and (iii) promptly prepare, upon the Initial Purchaser’s reasonable request, any amendment or supplement to the Final Offering Circular that the Initial Purchaser, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Preliminary Offering Circular and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales).
(c) Not to amend or supplement the Final Prospectus Offering Circular prior to comply with the Closing Date, or at any law or time prior to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each completion of the Underwriters resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto (which consent shall not be unreasonably withheld or delayed). The Company represents and agrees that, unless it obtains the prior consent of the Initial Purchaser, it has not made and will promptly either not make any offer relating to the Notes by means of any Supplemental Offering Materials.
(d) At any time prior to the completion of the resale of the Notes by the Initial Purchaser, (i) prepare and fileif any event shall occur as a result of which, in the reasonable judgment of the Company or cause the Initial Purchaser, it becomes necessary or advisable to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement amend or supplement to the Final Prospectus or (ii) prepare and file, or cause Offering Circular in order to be prepared and filed, with make the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will notstatements therein, in the light of the circumstances when it is so deliveredunder which they were made, be not misleading, or if it is necessary to amend or supplement the Final Offering Circular to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that (A) as so amended or supplemented, the Final Offering Circular will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Final Offering Circular will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Final Offering Circular so that the Final Prospectus Offering Circular will comply with applicable lawcontain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Final Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule.
(e) The Company will To cooperate with the Underwriters Initial Purchaser and the Initial Purchaser’s counsel in endeavoring to qualify connection with the Certificates for sale qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Underwriters Initial Purchaser may designate request and will maintain continue such qualifications qualification in effect so long as reasonably required for the distribution of the CertificatesExempt Resales, except provided that the Company will shall not be obligated to qualify the Certificates in file any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or to qualify as a foreign corporation or as a dealer in securities (or otherwise subject itself to taxation taxation) in any such jurisdiction to in which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for otherwise so long a period as the Underwriters may reasonably request for distribution of the Certificatessubject.
(f) The Company shall Whether or not investany of the Offering or the transactions contemplated under the Documents are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Time of Sale Circular, any Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), any Supplemental Offering Material and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Documents, (C) the preparation, issuance and delivery of the Notes, (D) the qualification of the Notes for offer and sale under the securities or otherwise Blue Sky laws of the several states (including, without limitation, the fees and disbursements of the Initial Purchaser’s counsel relating to such registration or qualification), and (E) furnishing such copies of the Time of Sale Circular, any Offering Circular, and all amendments and supplements thereto, as may reasonably be requested for use the proceeds received by the Initial Purchaser, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes in PORTAL, (iv) all fees and expenses (including fees and expenses of counsel) of the Company from in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the Collateral Agreements (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) all fees, disbursements and out-of-pocket expenses incurred by Initial Purchaser in connection with its services to be rendered hereunder including, without limitation, the fees and disbursements of ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures. If the sale of the Certificates Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchaser set forth in Section 6 hereof is not satisfied, because this Agreement is terminated pursuant to Section 8 hereof or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (other than in each such case solely by reason of a manner as would require default by the CompanyInitial Purchaser on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), CPS or the Trust Company agrees to register as an investment company under promptly reimburse the 1940 ActInitial Purchaser in cash upon demand for all fees, disbursements and out-of-pocket expenses (including fees, disbursements and charges of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Initial Purchaser to be paid in cash that shall have been incurred by the Initial Purchaser in connection with the proposed purchase and sale of the Notes.
(g) Until To use the retirement proceeds of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market Offering in the Certificates, whichever occurs first, manner described in the Company will deliver to each Underwriter Time of Sale Circular under the annual statements caption “Use of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the TrusteeProceeds.”
(h) The Company or CPS shall, from To do and perform all things required to be done and performed under the date hereof through Documents prior to and including after the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust Not to, and to make generally available to Certificateholders as soon as practicable, but ensure that no later than sixteen months after the Effective Date, an earnings statement Affiliate of the Trust covering a period Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of at least twelve consecutive months beginning after such Effective Date and satisfying any “security” (as defined in the provisions of Section 11(aAct) that would be integrated with the sale of the Notes in a manner that would require the registration under the Act (including Rule 158 promulgated thereunder)of the sale to the Initial Purchaser or to the Subsequent Purchasers of the Notes.
(j) So For so long as any of the Certificates are Notes remain outstanding, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the information required by Rule 144A(d)(4) under the Act.
(k) To comply with the representation letter of the Company to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(l) To use its reasonable best efforts to effect the inclusion of the Notes in Private Offerings Resales and Trading through Automated Linkages Market (“PORTAL”).
(m) For so long as any of the Notes remain outstanding, the Company will furnish to the Underwriters Initial Purchaser copies of all reports or and other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver by the Company to the Underwriters during such periodTrustee or to the holders of the Notes and, (i) as soon as they are available, copies of any reports and or financial statements furnished to or filed by or on behalf of the Trust or the Company with the Commission pursuant SEC or any national securities exchange on which any class of securities of the Company may be listed.
(n) Not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Time of Sale Circular, any Offering Circular and any amendments and supplements to the Securities Exchange Act of 1934Final Offering Circular prepared in compliance with this Agreement, as amended, and or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such additional information concerning terms are used in Regulation D under the business and financial condition Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Company as the Underwriter may from time to time reasonably requestAct.
(ko) On or before During the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and two year period after the Closing Date neither (or such shorter period as may be provided for in Rule 144(k) under the Act, as the same may be in effect from time to time), to not, and to not permit any current or future subsidiaries of either the Company nor CPS nor Samco shall take or any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted Affiliate controlled by the Pooling and Servicing AgreementCompany to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries of the Company or any other Affiliate controlled by the Company, except pursuant to an effective registration statement under the Act.
(lp) To The Company shall pay all stamp, documentary and transfer taxes (other than federal, state and local income taxes of the extentInitial Purchaser), if any, that which may be imposed by the ratings provided United States or any political subdivision thereof or taxing authority thereof or therein with respect to the Certificates by either issuance of the Rating Agencies is conditional upon the furnishing of documents Notes or the taking sale thereof to the Initial Purchaser.
(q) To use its commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of any other actions security interest as and to the extent contemplated by the Collateral Agreements.
(r) When subject to the Exchange Act, the Company shall maintain disclosure controls and procedures (as defined in Rule 13a-14 of the Exchange Act) designed to ensure that information required to be disclosed by the Company in the reports that it files or CPSsubmits under the Exchange Act is recorded, CPS shallprocessed, or shall cause summarized and reported in accordance with the Company to, furnish such documents Exchange Act and take any such other actions.
(m) On the Closing Daterules and regulations thereunder. When subject to the Exchange Act, the Company shall carry out evaluations, under supervision and CPS shall cause with the Certificate Insurer to issue the Policy to the Trustee for the benefit participation of the holders Company’s management, of effectiveness of the Certificates design and operation of the Company’s disclosure controls and procedures in form and substance satisfactory to each Underwriteraccordance with 13a-15 of the Exchange Act, as applicable.
Appears in 1 contract
Covenants of the Company. The Company and the Guarantors covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in If Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b) a Final or Rule 434, the Company will file the Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon (properly completed if Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus430A has been used) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) within the prescribed time period and will provide evidence satisfactory to ▇▇▇▇▇▇ Brothers of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434.
(iiib) when, prior Prior to termination and through the completion of the offering distribution of the CertificatesNotes, any amendment to the Registration Statement shall have been filed or become effective; Company will notify you promptly (ivand, if requested by ▇▇▇▇▇▇ Brothers, will confirm such notice in writing) (i) of any request by the Commission for any amendment of or supplement to the Registration Statement or supplement to the Final Prospectus or for any other additional information; , (vii) of the Company’s intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for proceedings therefor, it being understood that purpose; the Company shall make every reasonable effort to avoid the issuance of any such stop order, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS will use its best efforts If the Commission shall propose or enter a stop order at any time, the Company will, prior to and through the completion of the distribution of the Notes, make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) possible. Prior to and through the filing thereof with the Commission, CPS will submit to each completion of the Underwritersdistribution of the Notes, for its approval after reasonable notice thereof, such approval the Company will not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any Rule 462(b) Registration Statement proposed amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or a copy Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement or file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement Prospectus to which ▇▇▇▇▇▇ Brothers shall reasonably object in writing after being timely furnished in advance a copy thereof. The Company will provide ▇▇▇▇▇▇ Brothers with copies of all such amendments, filings and other documents a sufficient time prior to any filing or Final Prospectusother publication thereof to permit ▇▇▇▇▇▇ Brothers a reasonable opportunity to review and comment thereon.
(c) The Company will deliver to, or upon shall comply with the order of, Securities Act and the Underwriters, from time Exchange Act to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies permit completion of the Final Prospectusdistribution as contemplated in this Agreement, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Notes is required by law to be delivered by an Underwriter under the Securities Act or dealer the Exchange Act in connection with the sale sales of any CertificatesNotes, any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the reasonable judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time of delivery to the Final Prospectus is delivered to a purchaser, not misleading, oror if to comply with the Securities Act, if the Exchange Act or the Rules and Regulations it is shall be necessary at any time prior to the consummation of the Offering to amend or supplement the Final Prospectus to comply with any law or Registration Statement, or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActProspectus or in any amendment thereof or supplement thereto, the Company will notify you promptly notify each of and prepare and file with the Underwriters Commission, subject to Section 5(a) hereof, an appropriate amendment or supplement (in form and substance reasonably satisfactory to ▇▇▇▇▇▇ Brothers) which will correct such statement or omission or which will effect such compliance and will promptly either (i) prepare and file, or cause use its reasonable efforts to be prepared and filed, with the Commission an appropriate have any amendment to the Registration Statement or supplement declared effective as soon as possible.
(d) The Company will promptly deliver to each of you and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (the Final Prospectus or (ii“Underwriter’s Counsel”) prepare and file, or cause to be prepared and filed, with the Commission (at the expense a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company) an appropriate filing under ’s files manually signed copies of such documents for at least five years after the 1934 Act which shall be date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Final Registration Statement and Prospectus so that or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York City time, on the Final Prospectus as so amended or supplemented business day next succeeding the date of this Agreement and from time to time thereafter, the Company will not, in furnish the light Underwriters with copies of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawin New York City in such quantities as you may reasonably request.
(e) The Company will cooperate with consents to the use and delivery of the Preliminary Prospectus by the Underwriters in endeavoring accordance with Rule 430 and Section 5(b) of the Securities Act.
(f) The Company will use its reasonable efforts, in cooperation with ▇▇▇▇▇▇ Brothers, at or prior to the time of the Closing Date, to qualify the Certificates Notes for offering and sale under the securities laws relating to the offering or sale of the Notes of such jurisdictions jurisdictions, domestic or foreign, as the Underwriters ▇▇▇▇▇▇ Brothers may designate and will to maintain such qualifications qualification in effect for so long as required for the distribution of the Certificates, thereof; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actprocess.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders and to the Underwriters as soon as practicable, but no in any event not later than sixteen twelve months after the Effective Datedate of the Prospectus, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date Company and satisfying the provisions of Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including including, at the option of the Company, Rule 158 promulgated thereunder158).
(jh) During the period of 90 days from the date hereof, without the prior written consent of ▇▇▇▇▇▇ Brothers, which consent shall not be unreasonably withheld, the Company will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, pledge or otherwise dispose of (or enter into any transaction or duties which is designed to, or could be expected to, result in the disposition by any person at any time in the future) any debt securities of the Company or any Subsidiary with terms substantially similar (including having equal rank) to the Notes (other than the Notes); provided, however, nothing contained in this Section 4(h) shall obligate the Company to retain ▇▇▇▇▇▇ Brothers as its underwriter.
(i) So long as any of Notes are outstanding and so long as the Certificates are outstandingIndenture so requires, the Company will furnish to the Underwriters you copies of all reports or other communications (financial or otherwiseother) furnished to security holders or made available from time to Certificateholderstime published or publicly disseminated by the Company, and will deliver to you (unless filed on the Underwriters during such period, ▇▇▇▇▇ System) (i) as soon as they are available, copies of any reports and reports, financial statements and proxy or information statements furnished to or filed by or on behalf of the Trust or the Company with the Commission pursuant to or any national securities exchange on which any class of securities of the Securities Exchange Act of 1934, as amended, Company is listed; and (ii) such additional non-privileged information concerning the business and financial condition of the Company as the Underwriter you may from time to time reasonably requestrequest for purposes not adverse to the interests of the Company (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided, that the Company may require you to furnish a reasonable confidentiality agreement regarding any confidential non-public information prior to your receipt thereof.
(j) The Company will apply the net proceeds from the sale of the Notes as set forth under the caption “Use of Proceeds” in the Prospectus.
(k) On The Company, during the period when the Prospectus is required to be delivered under the Securities Act or before the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby (including any extensions permitted by the Rules and Regulations thereunder).
(l) The Company will use its reasonable efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company.
(m) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation (“S&P”) and ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) to reaffirm their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes.
(n) Up to and through the Closing Date, the Company has not and CPS will not (and ▇▇▇▇▇ shall has not permitted its affiliates to, and will cause its affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the respective computer records stabilization or manipulation of the price of any security of the Company and CPS and Samco relating to facilitate the Receivables to be marked to show the Trustee's absolute ownership sale or resale of the Receivables, Notes and from and after the Closing Date neither the Company nor CPS nor Samco shall any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action inconsistent with prohibited by Regulation M under the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementExchange Act.
(lo) To the extent, if any, that the ratings provided with respect The Company will use its best efforts to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents do and perform all things required to be done or the taking of any other actions performed under this Agreement by the Company or CPS, CPS shall, or shall cause and the Company to, furnish such documents and take any such other actions.
(m) On Guarantors prior to the Closing Date, the Company and CPS shall cause the Certificate Insurer Date to issue the Policy satisfy all conditions precedent to the Trustee for the benefit delivery of the holders of the Certificates in form and substance satisfactory to each UnderwriterNotes.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Entertainment Inc)
Covenants of the Company. The Company hereby covenants that from the date hereof until the earlier of: (i) the Purchaser having caused the boards of directors of the Company and agrees with each of its subsidiaries to consist of persons designated or selected by the several Underwriters thatPurchaser or having abandoned the Offer; or (ii) this Agreement having been terminated pursuant to section 11 hereof:
(a) CPS will use The Company shall and shall cause each of its best efforts subsidiaries to cause the Registration Statement, if not effective at the Execution Timeconduct its and their respective businesses only in, and any amendment theretonot take action except in, to become effective as soon as reasonably practicable thereafter orthe ordinary and usual course of business consistent with past practice and in compliance with applicable Laws, if the procedure in Rule 430A is followed, prepare and timely file except (i) with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness prior written consent of the Registration Statement Purchaser; and (ii) with respect to any matters which are disclosed in reliance upon Rule 430A. Prior section 5(a) of the Disclosure Letter, and in furtherance of the foregoing:
(i) neither the Company nor any of its subsidiaries shall declare, set aside or pay any dividends on or make any other distributions or payments (whether in cash, stock, securities or other property or any combination thereof) in respect of any shares in the capital of the Company or any of its subsidiaries, take or authorize any action to implement any of the foregoing or split, combine or reclassify any shares in the capital of the Company or any of its subsidiaries;
(ii) the Company will not amend or propose to amend its articles or by-laws or the articles or by-laws of any of its subsidiaries provided, however, that TigerTel Services may amend its articles in the manner contemplated by the Exchangeable Share Resolution;
(iii) neither the Company nor any of its subsidiaries shall fail to pay any fee to maintain the registrations of the Intellectual Property of the Company and its subsidiaries;
(iv) neither the Company nor any of its subsidiaries shall enter into any Agreement, arrangement or understanding with any Shareholder for the sale or purchase of any asset, the making of any loan, the assumption of any liability or the issuance of any security, other than as may be required in connection with the Exchangeable Share Redemption and the Consolidated Technologies Disposition;
(v) neither the Company nor any of its subsidiaries will enter into or amend any employment agreement, consulting services agreement, non-competition agreement, severance agreement or arrangement with respect to the termination of the offering of the Certificatesemployment, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification arrangement with respect to the suspension increase of compensation or fringe benefits, with any of its directors, officers, consultants or key employees except for the Employment Agreements;
(vi) neither the Company nor any of its subsidiaries will dismiss any senior employee of the qualification Company or any subsidiary of the Certificates Company, save and except for sale cause, other than in consultation and cooperation with the Purchaser and with the prior written consent of the Purchaser;
(vii) neither the Company nor any jurisdiction of its subsidiaries will authorize or commit to the initiation use of cash not in the ordinary course of business and consistent with past practice;
(viii) neither the Company nor any of its subsidiaries will adopt, enter into, amend or terminate any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any proceeding for such purpose. CPS employee or retiree, except as required to comply with changes in applicable Law;
(ix) each of the Company and its subsidiaries will use its reasonable best efforts to prevent maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses as are consistent with past practice;
(x) the Company will not sell, deliver, reserve, set aside, pledge, dispose of, issue, authorize or propose or commit to the issuance of (whether through the allotment, reservation, issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) or otherwise encumber any securities of the Company or any of its subsidiaries, or amend the terms of any outstanding securities of the Company or any of its subsidiaries, including any Common Shares or any securities convertible into or exchangeable for, or rights, warrants or options to acquire, or any equity equivalents (including stock appreciation rights) of, any Common Shares or other securities of the Company or any of its subsidiaries or accelerate any vesting or other rights or waive any rights under any outstanding rights, warrants or options to acquire any such shares, voting securities or convertible securities, provided that, notwithstanding the foregoing, the Company may accelerate the vesting of Company Options pursuant to section 5(d) hereof, may issue Common Shares pursuant to the exercise of fully vested options or other rights to purchase Common Shares which are outstanding as of the date hereof or which become outstanding pursuant to section 5(d) hereof and may amend the terms of the Exchangeable Shares in the manner contemplated by the Exchangeable Share Resolution;
(xi) the Company will not, and will not permit any of its subsidiaries to, acquire or agree to acquire any material amount of assets or securities, or enter into any partnership, joint venture, association or similar arrangement, or acquire or agree to acquire (whether by amalgamating, merging, consolidating or entering into a business combination with or purchasing or leasing or otherwise) any business or undertaking or any corporation, partnership, association or other business organization or division thereof;
(xii) except as required in connection with the Consolidated Technologies Disposition, the Company will not, and will not permit any of its subsidiaries to, sell, lease, transfer, license, mortgage or otherwise dispose of or encumber any of its property or assets, real or personal, that, individually or in the aggregate, are material to the Company and its subsidiaries taken as a whole;
(xiii) the Company will not, and will not permit any of its subsidiaries to, license or otherwise alienate or encumber in any manner, any of the Owned Software (as hereinafter defined), Owned Intellectual Property (as hereinafter defined) or other proprietary technology, other than to its customers in the ordinary course of business consistent with past practice;
(xiv) the Company will not redeem, purchase, acquire or offer to purchase any of its outstanding Common Shares or any of the shares of any of its subsidiaries, or any options, warrants or rights to acquire any Common Shares or any of the shares of any of its subsidiaries, or any security convertible into or exchangeable for Common Shares or any of the shares of any of its subsidiaries;
(xv) the Company will not, and will not allow any of its subsidiaries to, enter into, amend, assign or terminate any agreements, or waive, assign, transfer or release any rights under any covenants or agreements that, individually or in the aggregate, are material to the Company and its subsidiaries taken as a whole and will not modify, amend, assign, waive or terminate any confidentiality agreement the Company has entered into with third parties (except as contemplated by section 8(a));
(xvi) neither the Company nor any of its subsidiaries will effect or enter into any agreement to change its debt capitalization (including but not limited to any increase in the amount of its borrowings or any conversion of short-term borrowings into long-term borrowings), will not incur any liability or indebtedness for borrowed money, and will not make any loans, advances or capital contributions to, or investments in, any other person, other than loans made, in circumstances satisfactory to the Purchaser, to fund the exercise price of Company Options;
(xvii) the Company will not guarantee or permit its subsidiaries to guarantee the payment of any indebtedness;
(xviii) neither the Company nor any of its subsidiaries shall expend funds for capital expenditures other than in accordance with its current capital expenditure plans (which shall have been disclosed in writing to the Purchaser on or before the date of this Agreement);
(xix) neither the Company nor any of its subsidiaries shall take any steps to terminate its corporate existence or to adopt a plan of complete or partial liquidation or to adopt resolutions providing for or authorizing such a liquidation or a dissolution, merger, amalgamation, plan of arrangement, consolidation, restructuring, recapitalization, reorganization or similar transaction;
(xx) neither the Company nor any of its subsidiaries shall recognize any labour union (unless legally required to do so) or enter into or amend any collective bargaining agreement;
(xxi) neither the Company nor any of its subsidiaries shall change any accounting principle used by it, unless required by one of the relevant Canadian securities regulatory authorities or a change in Canadian generally accepted accounting principles except in order to conform the accounting practices of the subsidiaries of the Company (other than TigerTel Services) and/or the Company with the accounting practices of TigerTel Services;
(xxii) the Company and it subsidiaries shall use their reasonable best efforts to prepare and file on or before the due date therefor all Tax Returns required to be filed by the Company and its subsidiaries, and shall pay all Taxes (including estimated Taxes) due on any such Tax Returns or which are otherwise required to be paid. Such Tax Returns shall be prepared in accordance with the most recent Tax practices as to elections and accounting methods except for new elections that may be made therein that were not previously available;
(xxiii) to the extent the Company or any of its subsidiaries has knowledge of the commencement or scheduling of any Tax audit, the assessment of any Tax, the issuance of any such stop order notice of Tax due or any ▇▇▇▇ for collection of any Tax due, or the suspension commencement or scheduling of any other administrative or judicial proceeding with respect to the determination, assessment or collection of any Tax of the Company or any of its subsidiaries, the Company shall provide prompt notice to the Purchaser of such qualification matter, setting forth information describing any asserted Tax liability in reasonable detail and including copies of any notice or other documentation received from the applicable Tax authority with respect to such matter;
(xxiv) neither the Company nor any of its subsidiaries shall take any of the following actions:
(A) make, revoke or amend any Tax election;
(B) execute any waiver of restrictions on assessment or collection of any Tax; or
(C) enter into or amend any agreement or settlement with any Tax authority;
(xxv) neither the Company nor any of its subsidiaries shall settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) or settle, pay, discharge or compromise any claims not required to be paid, individually in an amount in excess of $10,000 and in the aggregate in an amount in excess of $50,000, other than in consultation and cooperation with the Purchaser, and, if issued or suspendedwith respect to any such settlement, to obtain with the prior written consent of the Purchaser;
(xxvi) the Company will advise the Purchaser as soon as possible practicable of any matter coming to its attention which could reasonably be expected to cause any of the withdrawal thereofrepresentations or warranties of the Company contained herein to be, or with the passage of time to become, incorrect or untrue in any way that could reasonably be expected to constitute or give rise to a Material Adverse Effect; and
(xxvii) neither the Company nor any of its subsidiaries shall authorize, commit or propose or agree to take any action which could reasonably be expected to make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect, or which could reasonably be expected to result in any of the conditions of the Offer (as set forth in section 4 of Schedule "A" hereto) not being satisfied.
(b) Prior The Company shall provide lists of shareholders of all classes and series of securities of the Company and of TigerTel Services and a list of holders of stock options and any other rights, warrants or convertible or exchangeable securities currently outstanding (with full particulars as to the filing thereof number held and exercise or conversion price) prepared by the Company or the transfer agent of the Company and/or TigerTel Services and deliver such lists to the Purchaser within 2 Business Days after execution of this Agreement and obtain and deliver to the Purchaser thereafter on demand supplemental lists setting out any changes thereto, all such deliveries to be both in printed form and if available in computer-readable format. The Company shall, if requested by the Purchaser, in connection with the CommissionOffer, CPS will submit permit its registrar and transfer agent to each act as the Purchaser's depositary under the Offer. The Company shall otherwise co-operate in good faith with the Purchaser to facilitate the mailing of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusOffer.
(c) The Company will deliver toand its subsidiaries shall participate and co-operate in all reasonable respects with the Purchaser and shall use their respective reasonable best efforts to take all appropriate action or to do or cause to be done all things necessary, proper or upon advisable under applicable laws and regulations to consummate and make effective the order oftransactions contemplated by this Agreement, including to diligently make all required regulatory filings and applications (including, without limitation, filings and applications under the UnderwritersCompetition Act (Canada) and to obtain all licences, from time permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities and parties to time, contracts with the Company and its subsidiaries as many copies are necessary for the consummation of any Preliminary Final Prospectus as the Underwriters may reasonably requesttransactions contemplated by this Agreement and to fulfil the conditions to the Offer. The Company will deliver to, or upon participate and cooperate in all reasonable respects with the order of, Purchaser in the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies preparation and filing of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestBid Circular.
(d) The Company will, and will cause (i) accelerate the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale vesting of any Certificates, any event shall occur as a result of which, in the judgment of outstanding unvested Company Options issued by the Company or in any predecessor, subject to obtaining the reasonable opinion consent of the Underwriters, it becomes necessary to amend or supplement holder where required under the Final Prospectus in order to make the statements therein, in the light terms of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would option so that such unvested options may be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment exercised prior to the Registration Statement or supplement to the Final Prospectus or Expiry Time; (ii) prepare use all reasonable efforts to cause each holder of Company Options to exercise such options prior to the Expiry Time and fileto cancel, or cause to be prepared without consideration, any options not so exercised; and filed, with (iii) upon the Commission (at the expense written direction of the Company) an appropriate filing Purchaser, take any reasonable action in respect of such options that is permitted under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawLaws.
(e) The Company will cooperate with Upon the Underwriters in endeavoring take-up and payment for Common Shares by the Purchaser pursuant to qualify the Certificates for sale under Offer, and provided the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution Purchaser thereby acquires at least a majority of the Certificatesoutstanding Common Shares, except the Company shall use its reasonable best efforts to (i) ensure that the Company Purchaser will not be obligated have the ability to qualify immediately replace the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination members of the legality Board with individuals designated by the Purchaser, and (ii) assist the Purchaser in acquiring pursuant to a subsequent acquisition transaction, or other transaction proposed by the Purchaser, all of the Certificates for purchase by institutional investors. The Company will, from time Common Shares not tendered to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesOffer.
(f) The Company shall not invest, or otherwise agrees to use its reasonable best efforts to preserve intact the proceeds received by goodwill and present relationships of the Company from and its sale subsidiaries with the Employees (as hereinafter defined) and with customers, suppliers and other persons with whom the Company and its subsidiaries have business relationships, and to ensure that such relationships are maintained following the completion of the Certificates Offer, and the Company shall advise the Purchaser forthwith if it has reason to believe that any such relationship will not continue after the completion of the Offer in such a substantially the same manner as would require prior to the Company, CPS or the Trust to register as an investment company under the 1940 Actdate of this Agreement.
(g) Until the retirement The Company and its subsidiaries will consult on an ongoing basis with representatives of the CertificatesPurchaser to report on operational matters and as to the general status of the business, or until such time as and in order that the Underwriters shall cease to maintain a secondary market in representatives of the Certificates, whichever occurs first, Purchaser will become more familiar with the philosophy and techniques of the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreementits subsidiaries, as soon well as such statements with their business and reports are furnished to the Trustee.
(h) The Company or CPS shallfinancial affairs, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.provide experience as
Appears in 1 contract
Sources: Acquisition Agreement (Applied Digital Solutions Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination following covenants, all of which will survive the purchase and offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, Bonds and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be investigations made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust Purchaser:
(a) The Company agrees to indemnify and hold harmless the Issuer, its counsel, Bond Counsel, the Purchaser, the Trustee, any officer, agent or employee of the Company with Issuer and each person, if any, who controls any of the Commission pursuant to foregoing within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amendedamended (collectively referred to herein as the "Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses whatsoever arising out of or resulting from or in any way related to the issuance and sale of the Bonds, any breach by the Company of any of, or the inaccuracy of any of, its representations, warranties and covenants set forth in this Agreement and the permanent financing of the Project and the acquisition, installation, equipping and the use of the Project; provided, however, that the Company shall not indemnify and hold harmless any Indemnified Party from damages that result from negligence or misconduct on the part of the Indemnified Party seeking such indemnity. In case any action shall be brought against one or more of the Indemnified Parties based upon the information described in the preceding paragraph and in respect of which indemnity may be sought against the Company, the Indemnified Parties shall promptly notify the Company in writing and the Company shall promptly assume the defense thereof, including the employment of counsel reasonably acceptable to the Indemnified Parties, the payment of all expenses, and (ii) such additional information concerning the business right to negotiate and financial condition consent to settlement. Any one or more of the Indemnified Parties has the right, at its own expense, to employ separate counsel in any such action and to participate in the defense thereof. The Company as shall not be liable for any settlement of any such action effected without its consent, but if settled with the Underwriter may consent of the Company, or if there be a final judgment for the plaintiff in any such action with or without its consent, the Company agrees to indemnify and hold harmless the Indemnified Parties from time to time reasonably requestand against any loss or liability by reason of such settlement or judgment.
(kb) On The Company will not take or before omit to take, as may be applicable, any action which would, in any way, cause the Closing Dateproceeds of the Bonds to be applied in a manner contrary to the requirements of the Indenture and the Loan Agreement.
(c) Whether or not the sale of the Bonds by the Issuer to the Purchaser is consummated, the Company agrees that the or Issuer or the Purchaser shall have no obligation to pay any costs or expenses incident to the performance of the obligations of the Issuer or the Purchaser under this Agreement. All costs and CPS expenses to effect the preparation, issuance, sale and delivery of the Bonds and the Loan Documents and the fees and expenses of the Issuer, its Agents, and of Bond Counsel, and of the Purchaser and its counsel, shall be paid by the Company.
(d) The Company agrees to provide the Purchaser:
i. Unaudited financial statements of Company and ▇▇▇▇▇▇▇ shall cause the respective computer records of Strong Tie Company, Inc. ("SSTC"), prepared by the Company and CPS SSTC respectively for each fiscal year of Company and Samco relating to SSTC, within 90 days after the Receivables to be marked to show close of each such fiscal year.
ii. Unaudited financial statements (including a balance sheet and profit and loss statement) of Company and SSTC for each quarter of each fiscal year of Company and SSTC, within 60 days after the Trustee's absolute ownership close of each such period.
iii. A compliance certificate for (and executed by an authorized representative of) the Company and the Guarantors, concurrently with and dated as of the Receivablesdate of delivery of each of the financial statements as required under the Guaranties or in paragraphs (i) and (ii) above, containing (a) a certification that the financial statements of even date fairly present Company's and Guarantors' consolidated financial condition as of the date thereof and that the Company and Guarantors are not in default under the terms of this Agreement or any of the other Loan Documents or the Guaranties, and from (b) computations and after conclusions, in such detail as the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such ReceivablesPurchaser may request, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to compliance with this Agreement, and the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents other Loan Documents or the taking Guaranties, including computations of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsall quantitative covenants.
(m) On iv. Such other additional information, reports and statements respecting the Closing Date, the business operations and financial condition of Company and CPS shall cause Guarantors, from time to time, as the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each UnderwriterPurchaser may reasonably request.
Appears in 1 contract
Sources: Bond Purchase Agreement (Simpson Manufacturing Co Inc /Ca/)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representatives orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representatives sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, wi▇▇ ▇▇▇▇▇sh the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many with copies of each amendment and supplement to the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver Supplemented Prospectus relating to the Underwriters at or before the Closing Date, two signed copies offering of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchaser, not misleading, or, if it is necessary at any time to amend timely basis all documents or supplement the Final Prospectus to comply with any law or to file amendments required under the 1934 Act any document which would be deemed to be incorporated by reference in and the Registration Statement to comply with the 1933 Act or the 1934 Actrules and regulations thereunder; provided, that the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, shall not file such documents or cause amendments without also furnishing copies thereof prior to be prepared and filed, with the Commission an appropriate amendment such filing to the Registration Statement or supplement to the Final Prospectus or (ii) prepare Representatives and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawDewey Ballantine LLP.
(ec) The Company will cooperate Th▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇ndeavor, in cooperation with the Underwriters in endeavoring Underwriters, to qualify the Certificates Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificatesdesignate; provided, except however, that the Company will shall not be obligated to qualify the Certificates as a foreign corporation in any jurisdiction in which such qualification would require the Company it is not so qualified or to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in file annual reports or to comply with any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested requirements in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken qualification deemed by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriterunduly burdensome.
(id) The Company will cause the Trust to make generally available to Certificateholders its security holders as soon as practicable, practicable but no not later than sixteen months 45 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying Company (in form complying with the provisions of Section 11(a) Rule 158 of the Act (including Rule 158 promulgated thereunder).
(jrules and regulations under the 1933 Act) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and covering a twelve-month ▇▇▇▇▇▇ shall cause ▇eginning not later than the respective computer records first day of the Company and CPS and Samco relating to Company's fiscal quarter next following the Receivables to be marked to show the Trustee's absolute ownership "effective date" (as defined in Rule 158) of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementRegistration Statement.
(le) To As soon as practicable after the extentdate of this Agreement, if anyand in any event within the time prescribed by Rule 424 under the 1933 Act, that to file the ratings provided Final Supplemented Prospectus with respect the Commission and to advise the Certificates by either Representatives of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents filing and take any to confirm such other actionsadvice in writing.
(mf) On During a period of 15 days from the Closing Datedate of this Agreement, the Company and CPS shall cause will not, without the Certificate Insurer Representatives' prior written consent, directly or indirectly, sell, offer to issue sell, grant any option for the Policy sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the Trustee Senior Notes (except for the benefit Senior Notes issued pursuant to this Agreement). The Representatives agree that commercial paper or other debt securities with scheduled maturities of the holders of the Certificates in form and substance satisfactory less than one year are not subject to each Underwriterthis Section 3(f).
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A and (ii) not file any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has of which you shall not previously have been advised and furnished to each of the Underwriters with a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters you shall have reasonably objects and objected in writing or which is not in compliance with the 1933 Securities Act or the Rules and Regulations. CPS .
(b) The Company will promptly advise notify each Underwriter in the Underwriters event of (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or for supplement to the Final Prospectus or for any other additional information; , (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, (iii) the institution or the notice of intended institution of any action or proceeding for that purpose; and , (viiv) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or (v) the receipt by it of notice of the initiation or threatening of any proceeding for such purpose. CPS The Company will use its best efforts make every reasonable effort to prevent the issuance of any such a stop order or the suspension of any such qualification and, if issued or suspendedsuch an order shall at any time be issued, to obtain as soon as possible the withdrawal thereof.
(b) Prior to thereof at the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectusearliest possible moment.
(c) The Company will (i) on or before the Closing Date, deliver toto you a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, or promptly upon the order offiling thereof, a signed copy of each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will also deliver to you, for distribution to the Underwriters, from time to time, as many a sufficient number of additional conformed copies of any Preliminary Final Prospectus each of the foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter; (ii) as promptly as possible deliver to you and send to the Underwriters several Underwriters, at such office or offices as you may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Actdesignate, as many copies of the Final Prospectus, or Prospectus as thereafter amended or supplemented, as the Underwriters you may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement ; and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Prospectus and of any amended prospectus, filed by the Company with the Commission, as you may reasonably requestrequest for the purposes contemplated by the Securities Act.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If at any time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event relating to or affecting the Company, or of which the Company shall be advised in writing by you, shall occur as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. If, orafter the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with opinion either of counsel for the 1933 Act Company or of counsel for the 1934 ActUnderwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will promptly notify each of forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and will promptly either (i) prepare and fileall dealers to whom any of the Shares may be sold by the several Underwriters to use the Prospectus, as from time to time amended or cause to be prepared and filedsupplemented, in connection with the Commission an appropriate sale of the Shares in accordance with the applicable provisions of the Securities Act and the applicable Rules and Regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate with cooperate, when and as requested by you, in the Underwriters in endeavoring to qualify qualification of the Certificates Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or blue sky laws; provided, except however, that the Company will shall not be obligated to qualify the Certificates in file any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation qualify as a foreign corporation in any such jurisdiction to in which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, from time to time, prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering During a period of at least twelve consecutive months beginning after such Effective Date and satisfying five years commencing with the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstandingdate hereof, the Company will furnish to the Underwriters you, and to each Underwriter who may so request in writing, copies of all periodic and special reports or other communications furnished to stockholders of the Company and of all information, documents and reports filed with the Commission.
(financial or otherwiseh) furnished or made Not later than the 45th day following the end of the fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to Certificateholdersits security holders an earnings statement in accordance with Section 11(a) of the Securities Act and Rule 158 thereunder.
(i) For a period of one year commencing with the date hereof, the Company agrees, at the Company's expense, to cause the Company's regularly engaged independent certified public accountants to review (but not audit) the Company's financial statements in accordance with the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement on Auditing Standards No. 71 "Interim Financial Information" for each of the three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company's Quarterly Report on Form 10-Q with the Commission and deliver the mailing of quarterly financial information to stockholders of the Company.
(j) The Company agrees to pay all costs and expenses incident to the performance of its obligations under this Agreement, including all costs and expenses incident to (i) the preparation, printing and filing with the Commission and the NASD of the Registration Statement, any Preliminary Prospectus and the Prospectus; (ii) the furnishing to the Underwriters during such period, (i) as soon as they are available, and the persons designated by them of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this Section 5 to be so furnished; (iii) the printing of this Agreement and related documents delivered to the Underwriters; (iv) the preparation, printing and filing of all supplements and amendments to the Prospectus referred to in paragraph (d) of this Section 5, (v) the furnishing to you and the Underwriters of the reports and financial statements filed by or on behalf information referred to in paragraph (g) of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, this Section 5; and (iivi) such additional information concerning the business printing and financial condition issuance of stock certificates, including the Company as the Underwriter may from time to time reasonably requesttransfer agent's fees.
(k) On or before The Company agrees to reimburse you, for the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records account of the Company several Underwriters, for blue sky fees and CPS related disbursements (including counsel fees and Samco relating to disbursements and cost of printing memoranda for the Receivables to be marked to show Underwriters) paid by or for the Trustee's absolute ownership account of the Receivables, Underwriters or their counsel in qualifying the Shares under state securities or blue sky laws and from and after in the Closing Date neither review of the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted offering by the Pooling and Servicing AgreementNASD.
(l) To The provisions of paragraphs (j) and (k) of this Section are intended to relieve the extent, if any, that Underwriters from the ratings provided with respect to the Certificates by either payment of the Rating Agencies is conditional upon expenses and costs which the furnishing of documents Company hereby agrees to pay and shall not affect any agreement which the Company may make, or may have made, with any other party for the taking sharing of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents expenses and take any such other actionscosts.
(m) On The Company hereby agrees that, without the Closing Dateprior written consent of VBW, the Company will not, for a period of one year following the date the Registration Statement becomes effective, (i) offer, sell, contract to sell, make any short sale (including, without limitation, short sales against the box), pledge or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options to acquire shares of Common Stock, options to acquire Common Stock or securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire Common Stock (including, without limitation, Common Stock that may be deemed to be beneficially owned in accordance with the Rules and CPS shall cause Regulations) other than the Certificate Insurer to issue the Policy exercise or conversion of options, warrants or convertible securities outstanding and held by such person prior to the Trustee date hereof; or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences or ownership of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that bona fide gift transactions and transfers which will not result in any change in beneficial ownership may be permitted if the transferee enters into a lock-up agreement in substantially the same form covering the remainder of the Lock-Up Period. The foregoing sentence shall not apply to (A) the Shares to be sold to the Underwriters pursuant to this Agreement; (B) shares of Common Stock issued by the Company upon the exercise of options granted prior to the date hereof under the option plans of the Company (the "Option Plans", all as described in footnote (__) to the table under the caption "Capitalization" in the Preliminary Prospectus; and (C) options to purchase Common Stock granted after the date hereof under the Option Plans, provided that such options by their terms are not exercisable until after the Lock-Up Period.
(n) If at any time during the 25-day period after the Registration Statement becomes effective any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price for the benefit shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the holders of Prospectus), the Certificates in form Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and substance disseminate a press release or other public statement, reasonably satisfactory to each Underwriteryou, responding to or commenting on such rumor, publication or event.
Appears in 1 contract
Sources: Underwriting Agreement (Condor Technology Solutions Inc)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, (i) prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon on Rule 430A. Prior to the termination of the offering of the Certificates, CPS will 430A; and (ii) not file with the Commission any amendment of to the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b(A) Registration Statement unless CPS has furnished to each of which the Underwriters shall not previously have been advised and furnished with a copy for its review a reasonable period of time prior to the proposed filing and will not file any such proposed amendment or supplement as to which any of filing the Underwriters reasonably objects and shall not have given their consent or (B) of which is not in compliance with the 1933 Securities Act Regulations. CPS or the rules and regulations of the Commission thereunder.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Underwriters (i) when of any request made by the Commission for amendment of the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (vii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or the institution or threat of any action, investigation or proceeding for that purpose; and or (viiii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction jurisdiction, or the receipt by it of notice of the initiation or threatening of any proceeding for such that purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting or withdrawal thereof as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectuspossible.
(c) The Company will (i) on or before the Closing Date, deliver toto the Underwriters a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, or promptly upon the order offiling thereof, a signed copy of each post-effective amendment, if any to the Registration Statement (together with, in each case, all exhibits thereto unless previously delivered to the Underwriters); (ii) as promptly as possible deliver to the Underwriters, from time to timeat such office as the Underwriters may designate, as many copies of any Preliminary Final the Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as ; and (iii) thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter the Underwriters or a dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Prospectus and of any amended prospectus, filed by the Company with the Commission, as the Underwriters may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is required by law to be delivered by an Underwriters or dealer in connection with the sale of any Certificates, any event relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur as a result of whichwhich it is necessary, in the judgment opinion of counsel for the Company or in the reasonable opinion of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it becomes is delivered to a purchaser of the Shares, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final such Prospectus is delivered to a such purchaser, not misleading. If, orafter the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of the offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with opinion either of counsel for the 1933 Act Company or of counsel for the 1934 ActUnderwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will promptly notify each of forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and will promptly either (i) prepare and fileall dealers to whom any of the Shares may be sold by the Underwriters to use the Prospectus, as from time to time amended or cause to be prepared and filedsupplemented, in connection with the Commission an appropriate sale of the Shares in accordance with the applicable provisions of the Securities Act and the applicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement or and any supplement to the Final Prospectus or (ii) prepare and file, or cause any amended prospectus proposed to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(ef) The Company will cooperate with cooperate, when and as requested by you, in the Underwriters in endeavoring to qualify qualification of the Certificates Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters you may designate and will maintain and, during the period in which a prospectus is required by law to be delivered by an Underwriters or a dealer, in keeping such qualifications in effect so long as required for the distribution of the Certificatesgood standing under said securities or blue sky laws; provided, except however, that the Company will shall not be obligated required to qualify the Certificates as a foreign corporation or file any general consent to service of process in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investorsso qualified. The Company will, will from time to time, prepare and file such statements, reports, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters you may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 ActShares.
(g) Until The Company agrees to pay the retirement costs and expenses relating to the following matters: (A) the preparation, printing or reproduction and filing with the Commission of the CertificatesRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or until supplement to any of them; (B) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such time copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (C) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to be sold by the Company; (D) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (E) the listing of the Shares on the Nasdaq National Market; (F) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states any other jurisdictions (including filing fees and the reasonable fees and expenses of counsel for the Underwriters shall cease relating to maintain a secondary market such registration and qualification); (G) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (H) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Certificates, whichever occurs first, Shares; (I) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (J) all other costs and expenses incident to the performance by the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trusteeits obligations hereunder.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as As soon as practicable, but no in any event not later than sixteen months 45 days after the end of the first fiscal quarter first occurring after the first anniversary of the Effective Date, the Company will make generally available to its security holders, in the manner specified in Rule 158(b) of the rules and regulations promulgated under the Securities Act, an earnings statement of that will be in the Trust covering a period of at least twelve consecutive months beginning after such Effective Date detail required by, and satisfying will otherwise comply with, the provisions of Section 11(a) of the Securities Act (including and Rule 158 158(a) of the rules and regulations promulgated thereunder).
(ji) So long as any During a period of two years after the Certificates are outstandingdate hereof, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made make available to Certificateholders, and deliver to the Underwriters during such period, each Underwriter (i) as soon as they are availablereasonably practicable after the end of each fiscal year, copies of any reports the Company's Annual Report and financial statements (ii) as soon as reasonably practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by with the Commission.
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will not, directly or indirectly, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC, on behalf of the Trust Underwriters, issue, offer, sell, grant any option to purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 90 days following the Company with commencement of the Commission public offering of the Shares by the Underwriters, except (i) pursuant to this Agreement, (ii) pursuant to the exercise of warrants outstanding on the date hereof and as described in the Prospectus or (iii) pursuant to the exercise of stock options outstanding on the date hereof, or granted subsequent to the date hereof, pursuant to a stock option or other employee benefit plan in existence on the date hereof and as described in the Prospectus.
(l) The Company will not take, directly or indirectly, and will use its best efforts to cause its officers, directors or affiliates not to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(m) The Company will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(n) The Company will use its best efforts to timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and material substance with the applicable requirements under the Securities Act, the rules and regulations promulgated thereunder, the Exchange Act and the rules and regulations promulgated thereunder.
(o) The Company is familiar with the Investment Company Act of 19341940, as amended, and (ii) has in the past conducted its affairs, and will use its commercially reasonable efforts in the future conduct its affairs, in such additional information concerning a manner to ensure that the business Company was not and financial condition will not be an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the Underwriter may from time to time reasonably requestrules and regulations thereunder.
(kp) On The Company either has caused to be delivered to you or before will cause to be delivered to you prior to the Closing Dateeffective date of the Registration Statement a letter (the "Lock-Up Agreement") from (i) each of the Company's directors, executive officers, and five percent (5%) stockholders stating that such person agrees that he or she will not, without the Company and CPS and prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇ shall cause + Co., LLC directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the respective computer records meaning of Rule 16a–1(h) under the Exchange Act or otherwise dispose of (or enter into any transaction that is designed to, or could be expected to, result in the disposition by any person of) any shares of Common Stock, options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock currently or hereafter owned either of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) by him or her, or publicly announce his or her intention to do any of the Company and CPS and Samco relating foregoing, prior to the Receivables to be marked to show the Trustee's absolute ownership date of the Receivables, and from and Prospectus for a period of 90 days after the Closing Date neither the Company nor CPS nor Samco shall take first date any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted Underwritten Stock is released by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect Underwriters for sale to the Certificates by either public and (ii) certain of the Rating Agencies is conditional upon the furnishing of documents or the taking of any Company's other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy stockholders containing identical restrictions to the Trustee for the benefit of the holders of the Certificates Lock-Up Agreements referred to in form and substance satisfactory to each Underwriter(i) above.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with you and the several Underwriters participating in the Offering of any Series of Certificates that:
(a) CPS In connection with the execution of each Terms Agreement, the Company will use its best efforts prepare a Prospectus Supplement to cause be filed under the Registration StatementAct setting forth the principal amount of Certificates covered thereby and their terms not otherwise specified in the Prospectus, the price at which the Certificates are to be purchased by the Underwriters from the Company, either the initial public offering price or the method by which the price at which the Certificates are to be sold will be determined, the selling concession and reallowance, if not effective at the Execution Timeany, any delayed delivery arrangements, and any amendment thereto, to become effective such other information as soon as reasonably practicable thereafter or, if you and the procedure Company deem appropriate in Rule 430A is followed, prepare and timely file connection with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS but the Company will not file any amendment of amendments to the Registration Statement or amendment any amendments or supplement (including the Final Prospectus or any Preliminary Final Prospectus) supplements to the Base Prospectus Prospectus, unless it shall first have delivered copies of such amendments or any Rule 462(b) Registration Statement unless CPS has furnished supplements to each of the Underwriters a copy for its review prior to filing you, and you shall not have objected thereto promptly after receipt thereof. The Company will not file any such proposed amendment advise you or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will your counsel promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with notice is received from the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, that any post-effective amendment to the Registration Statement shall have been filed has become or will become effective; , and (ivii) of any request order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Certificates, or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission for or any amendment of authority administering any state securities or Blue Sky law, as soon as the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; Company is advised thereof, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, communication and to obtain as soon as possible the withdrawal thereofits lifting, if issued.
(b) Prior The Company will cause any Computational Materials and any Structural Term Sheets (each as defined in Section 8 below) with respect to each Series of Certificates that are delivered by the Underwriters to the filing thereof with the Commission, CPS will submit Company pursuant to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed Section 8 to be filed or with the Commission on a copy Current Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on the business day immediately following the day on which such Computational Materials and Structural Term Sheets are delivered to counsel for the Company by any document proposed of the Underwriters prior to 10:30 a.m. (and will use its best efforts to cause such Computational Materials and Structural Term Sheets to be so filed prior to 2:00 p.m., New York time, on such business day), and will promptly advise you when such Current Report has been so filed. The Company will cause one Collateral Term Sheet (as defined in Section 9 below) with respect to an Offering of a Series that is delivered by any of the Underwriters to the Company in accordance with the provisions of Section 9 to be filed with the Commission on a Current Report pursuant to Rule 13a-11 under the 1934 Exchange Act before on the termination business day immediately following the day on which such Collateral Term Sheet is delivered to counsel for the Company by any of the offering Underwriters prior to 10:30 a.m. In addition, if at any time prior to the availability of the Certificates by related Prospectus Supplement, any of the Underwriters has delivered to any prospective investor a subsequent Collateral Term Sheet that reflects, in the reasonable judgment of such Underwriter and the Company, a material change in the characteristics of the mortgage loans or mortgage related securities for the related Series from those on which a Collateral Term Sheet with respect to the related Series previously filed with the Commission was based, the Company will cause any such Collateral Term Sheet that is delivered by such Underwriter to the Company in accordance with the provisions of Section 9 to be filed with the Commission on a Current Report on the business day immediately following the day on which such Collateral Term Sheet is delivered to counsel for the Company by such Underwriter prior to 2:00 p.m. In each case, the Company will promptly advise you when such Current Report has been so filed. Notwithstanding the four preceding sentences, the Company shall have no obligation to file any materials provided by any of the Underwriters pursuant to Sections 8 and 9 which (i) in the reasonable determination of the Company are not required to be filed pursuant to the Kidd▇▇ ▇▇▇ters or the PSA Letter (each as defined in Section 8 below), or (ii) contain erroneous information or contain any untrue statement of a material fact or, when read in conjunction with the Prospectus and Prospectus Supplement, omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood, however, that the Company shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any Computational Materials or ABS Term Sheets (as defined in Section 9 below) provided by such Underwriter to the Company pursuant to Section 8 or Section 9 hereof. The Company shall give notice to you and such Underwriter of its determination not to file any materials pursuant to clause (i) of the preceding sentence and agrees to file such materials if such document would be deemed Underwriter or you reasonably object to be incorporated by reference into the Registration Statement or Final Prospectussuch determination within one business day after receipt of such notice.
(c) The If at any time when a prospectus relating to the Certificates is required to be delivered under the Act any event occurs as a result of which in the opinion of counsel for the Company or the Underwriters the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the
(d) With respect to each Series of Certificates, the Company will deliver to, or upon make generally available to the order of, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies holders of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, Certificates and will deliver to you, in each case as soon as practicable, an earnings statement covering the Underwriters twelve-month period beginning after the date of the Terms Agreement in respect of such number series of Certificates, which will satisfy the provisions of Section 11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you copies of the Registration Statement (including such number two of copies of the which will be signed and will include all documents and exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be thereto or incorporated by reference therein), each related preliminary prospectus, the Prospectus, and of all amendments theretoand supplements to such documents, in each case as the Underwriters may from time to time reasonably soon as available and in such quantities as you request.
(df) The Company will, and will cause use its best efforts arrange for the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution qualification of the Certificates for sale and the determination of their eligibility for investment under the laws of such jurisdictions as contemplated you reasonably designate and will continue such qualifications in effect so long as reasonably required for the distribution; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process; and provided further that the Underwriters will pay all costs and expenses associated therewith.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement and any Terms Agreement and will reimburse the Final Prospectus. If during Underwriters for any expenses (including fees and disbursements of counsel and accountants) incurred by them in connection with qualification of the Certificates and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing of memoranda relating thereto, for any fees charged by the nationally recognized statistical rating agencies for the rating of the Certificates, for the filing fee of the National Association of Securities Dealers,
(h) During the period in which when a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary Certificates pursuant to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Actthis Agreement, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, file or cause to be prepared and filed, on a timely and complete basis, all documents that are required to be filed by the Company with the Commission an appropriate amendment pursuant to the Registration Statement Section 13, 14 or supplement to the Final Prospectus or (ii15(d) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Exchange Act.
(gi) Until the retirement of the Certificates, or until such time So long as the Underwriters Certificates of a Series shall cease to maintain a secondary market in the Certificates, whichever occurs firstbe outstanding, the Company will deliver to each Underwriter you the annual statements statement of compliance delivered to the Trustee pursuant to the Pooling Agreement and the annual statement of a firm of independent certified public accountant's reports accountants furnished to the Trustee pursuant to the Pooling and Servicing Agreement, Agreement as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Fund America Investors Corp Ii)
Covenants of the Company. 4.1. The Company covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause all shares of Common Stock that may be issued upon the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness exercise of the Registration Statement in reliance rights represented by this Warrant shall, upon Rule 430A. Prior to the termination of the offering of the Certificatesissuance, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing be duly authorized, validly issued, fully paid and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspended, to obtain as soon as possible the withdrawal thereof.nonassessable;
(b) Prior during the period within which this Warrant may be exercised, it will at all times have authorized and reserved a sufficient number of shares of Common Stock to provide for the filing thereof with the Commission, CPS will submit to each exercise of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates rights represented by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.this Warrant;
(c) The Company will deliver to, if any shares of Common Stock reserved or upon to be reserved to provide for the order of, the Underwriters, from time to time, as many copies exercise of this Warrant require registration with or approval of any Preliminary Final Prospectus governmental or self-regulatory authority under any federal or state law or stock exchange or NASDAQ rule before such shares may be validly issued, then it shall in good faith and as the Underwriters may reasonably request. The Company will deliver to, expeditiously as possible endeavor to secure such registration or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplementedapproval, as the Underwriters case may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.be;
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer in connection with the sale of any Certificates, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as have filed a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee registration statement pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each requirements of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any Section 12 of the conditions contained in this Agreement; Securities and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amendedamended (the "EXCHANGE ACT"), and (ii) such additional information concerning or a registration statement pursuant to the business and financial condition requirements of the Securities Act, the Company as shall comply with the Underwriter may reporting requirements of Sections 13 and 15(d) of the Exchange Act and will comply with all other public information reporting requirements the securities and exchange commission (including Rule 144 promulgated by such commission under the Securities Act) from time to time reasonably request.in effect and relating to the availability of an exemption from the Securities Act for the sale of any restricted securities; and
(ke) On it shall not, by amendment to its certificate of incorporation (whether by way of merger, operation of law, or before otherwise) or reorganization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities, agreement or any other voluntary action, avoid or seek to avoid the Closing Date, observance or performance of any of the terms to be observed or performed hereunder by the Company and CPS shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and ▇▇▇▇▇ shall cause in the respective computer records taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder against impairment as if the Holder was a shareholder of the Company and CPS and Samco relating entitled to the Receivables benefit of fiduciary duties afforded to be marked stockholders under Illinois law. Any successor to show the Trustee's absolute ownership Company shall agree in writing, as a condition to such succession, to carry out and observe the obligations of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided hereunder with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionsthis Warrant.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) CPS If the Registration Statement has not yet been declared effective, the Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, Statement and any amendment thereto, amendments thereto to become effective as soon promptly as reasonably practicable thereafter orpossible, and if the procedure in Rule 430A is followed, prepare and timely file with used or the Commission filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) a Final Prospectus containing information previously omitted at pursuant to Rule 424(b) within the prescribed time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing period and will not file any provide evidence satisfactory to you of such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not timely filing. The Company will notify you immediately (and, if requested by you, will confirm such notice in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing) (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, Statement shall have become effective; , (ii) when of the Final mailing or the delivery to the Commission for filing (if required) the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); ) or any Rule 462(b) Registration Statement, (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Final Prospectus Registration Statement or for any other additional information; the Prospectus, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceeding for that purpose; and proceedings therefor, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. CPS If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain the lifting of such order as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, CPS possible. The Company will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of file any post-- effective amendment to the Registration Statement, Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)) or any Rule 462(b) Registration Statement proposed to be filed that differs from the prospectus on file at the time of the effectiveness of the Registration Statement before or a copy after the effective date of the Registration Statement or, so long as the prospectus delivery requirements are applicable, file any document proposed to be filed under the 1934 Exchange Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final ProspectusProspectus to which you shall reasonably object in writing after being timely furnished in advance a copy thereof.
(cb) The Company will deliver to, or upon shall comply with the order of, Securities Act and the Underwriters, from time Exchange Act to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies permit completion of the Final Prospectusdistribution as contemplated in this Agreement, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which at any time when a prospectus relating to the Shares is required by law to be delivered by an Underwriter or dealer in connection with under the sale of any Certificates, Securities Act any event shall occur have occurred as a result of whichwhich the Prospectus as then amended or supplemented would, in the judgment of the Company Underwriters or in the reasonable opinion Company, include an untrue statement of the Underwriters, it becomes a material fact or omit to state any material fact required to be stated therein or necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Final Prospectus or Registration Statement to comply with any law the Securities Act or the Rules and Regulations thereunder, or to file under the 1934 Exchange Act so as to comply therewith any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActProspectus or in any amendment thereof or supplement thereto, the Company will notify you promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission or which will effect such compliance and use its best efforts to have any amendment to the Registration Statement or supplement declared effective as soon as possible.
(c) The Company will promptly deliver to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense each of the Company) an appropriate filing under Underwriters and Underwriters' Counsel (as defined in Section 6), without charge, a signed copy of the 1934 Act which shall be Registration Statement, including all consents and exhibits filed therewith and all documents incorporated by reference therein and all amendments thereto, and the Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Final Registration Statement and Prospectus so that or any amendment thereof or supplement thereto as you may reasonably request. Prior to 10:00 a.m., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(d) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430(a) and Section 5(b) of the Securities Act. The Company shall also furnish to each of the Underwriters such number of copies of the Final Prospectus as so amended or supplemented will not, in the light reasonably requested by any of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawUnderwriters.
(e) The Company will cooperate and assist in any filings required to be made with the Underwriters National Association of Securities Dealers, Inc. ("NASD"), and in endeavoring the performance of any due diligence investigation by any broker/dealer participating in the sale of the Shares until the termination or completion of the Offering.
(f) The Company will use its best efforts, in cooperation with the Underwriters, at or prior to the time of effectiveness of the Registration Statement, to qualify the Certificates Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as the Underwriters you may designate and will to maintain such qualifications in effect for so long as required for the distribution thereof and will pay any fee of the Certificates, NASD in connection with its review of the Offering; except that in no event shall the Company will not be obligated in connection therewith to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file corporation or to execute a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which where it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for now so long a period as the Underwriters may reasonably request for distribution of the Certificates.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actsubject.
(g) Until The Company will make generally available (within the retirement meaning of Section 11(a) of the Certificates, or until such time as Securities Act) to its security holders and to the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements practicable, but not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and reports are furnished to the TrusteeSubsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations thereunder (including, at the option of the Company, Rule 158).
(h) The Company or CPS shall, from From the date hereof through and including the Closing Datedate that is 90 days after the Closing, furnishthe Company will not, without your prior written consent, file with the Commission a registration statement under the Securities Act relating to, or cause directly or indirectly, sell, offer to be furnishedsell, contract to sell, grant any option to purchase (other than employee stock options), issue any instrument convertible into or exchangeable for, or make availableotherwise transfer or dispose of (or enter into any transaction or device which is designed to, or cause to could be made availableexpected to, to each Underwriter or its counsel such additional documents and information regarding each result in the disposition in the future of), any shares of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Common Stock; provided, however, that (i) the Company may take all actions necessary or CPS possess appropriate to enable it to issue and sell Common Stock pursuant to any employee stock plan, employee stock ownership plan, dividend reinvestment plan or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in defined contribution pension plan (within the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness meaning of any Section 3(34) of ERISA) of the conditions contained Company in this Agreement; effect on the date hereof and all actions taken by may continue to issue and sell Common Stock under its existing plans, (ii) the Company or CPS to authorize may issue Common Stock issuable upon the sale conversion of securities outstanding on the date hereof, and (iii) the Company may issue Common Stock upon the conversion of shares of Series D Preferred Stock and as payment of dividends on shares of Series D Preferred Stock, all in accordance with the terms of the Certificates shall be reasonably satisfactory in form and substance to each UnderwriterCertificate of Designation.
(i) The Company will cause use its best efforts to list the Trust to make generally available to Certificateholders as soon as practicableConversion Shares and the Dividend Shares on the New York Stock Exchange (the "NYSE") and the Pacific Stock Exchange (the "PCX"), but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish use its best efforts to maintain the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf listing of the Trust or Common Stock on the Company with NYSE and the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestPCX.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatUnderwriter as follows:
(a) CPS The Company will use its best efforts to cause notify the Registration Statement, if not effective at the Execution TimeUnderwriter promptly, and any amendment theretoconfirm the notice in writing, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (ivincluding any post-effective amendment), (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment of to the Registration Statement or any amendment or supplement to the Final Prospectus or for any other additional information; , and (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution initiation of any proceeding proceedings for that purpose; and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(b) Prior The Company will give the Underwriter notice of its intention to the filing thereof with the Commission, CPS will submit to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld file or delayed, a copy of prepare
(i) any post-- effective amendment to the Registration StatementStatement (including any post-effective amendment), (ii) any Rule 462(b) Registration Statement proposed amendment or supplement to be filed or a copy of the Prospectus (including any document proposed to be filed under revised prospectus which the 1934 Act before Company proposes for use by the termination of Underwriter in connection with the offering of the Certificates by the Underwriters if such Notes), or (iii) any document that would be deemed to as a result thereof be incorporated by reference into in the Registration Statement Prospectus whether pursuant to the 1933 Act, the 1934 Act or Final Prospectusotherwise, will furnish the Underwriter with copies of any such amendment, supplement or other document within a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment, supplement or other document or use any such prospectus to which the Underwriter or counsel for the Underwriter shall reasonably object. Subject to the foregoing, the Company will file the Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement.
(c) The Company will deliver to, or upon to the order of, the Underwriters, from time to time, Underwriter as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement as originally filed and all amendments of each amendment thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including or incorporated by reference therein and documents filed under the 1934 Act and incorporated or deemed to be incorporated by reference therein, ) as the Underwriter may reasonably request and will also deliver to the Underwriter a conformed copy of the Registration Statement as originally filed and of all amendments thereto, as the Underwriters may from time to time reasonably requesteach amendment thereto (without exhibits).
(d) The Company willwill furnish to the Underwriter, and will cause from time to time during the Trust to, comply with period when the Prospectus is required to be delivered under the 1933 Act, 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 or the 1933 Act Regulations, .
(e) If at any time when the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus Prospectus is required by law the 1933 Act to be delivered by an Underwriter or dealer in connection with sales of the sale of any CertificatesNotes, any event shall occur as a result of which, which the Prospectus as then amended or supplemented will include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the judgment light of the Company circumstances under which they were made not misleading or in the reasonable opinion of the Underwriters, if it becomes shall be necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with requirements of the 1933 Act or the 1934 Act1933 Act Regulations, the Company will will, subject to paragraph (b) above, promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, file with the Commission an appropriate such amendment to the Registration Statement or supplement to the Final Prospectus which will correct such statement or (ii) prepare omission or an amendment which will effect such compliance and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Certificates, except that the Company will not be obligated furnish to qualify the Certificates in any jurisdiction in which Underwriter a reasonable number of copies of such qualification would require the Company to qualify to do business as a foreign corporation, file a general amendment or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Certificatessupplement.
(f) The Company will endeavor, in cooperation with the Underwriter, to qualify the Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriter may designate; provided, however, that the Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates be obligated to qualify as a foreign corporation in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Actany jurisdiction in which it is not so qualified.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders its security holders and to the Underwriter as soon as practicable, but no not later than sixteen months 90 days after the Effective Dateclose of the period covered thereby, an earnings statement (which need not be audited) of the Trust Company and its subsidiaries, covering a an applicable period beginning not later than the first day of at least twelve consecutive months beginning after such the Company's fiscal quarter next following the "Effective Date and satisfying Date" (as defined in Rule 158(c) under the Act) of the Registration Statement, which will satisfy the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder)1933 Act.
(jh) So long as any of Until the Certificates are outstandingbusiness day following the Closing Time, the Company will furnish to not, without the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf consent of the Trust Underwriter, offer, sell or contract to sell, or announce the Company with the Commission pursuant to the Securities Exchange Act of 1934offering of, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted debt securities covered by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents Registration Statement or the taking of any other actions by registration statement filed under the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions1933 Act.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Covenants of the Company. The Company covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) CPS will use its best efforts To furnish to cause you, without charge, two signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to you during the period mentioned in Section 7(h) or 7(i) below, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement and the SRS or the Japanese Prospectus as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, if not effective at the Execution TimeProspectus, and any amendment theretothe SRS or the Japanese Prospectus, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) furnish to you a Final Prospectus containing information previously omitted at the time copy of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or each such proposed amendment or supplement (including the Final Prospectus and not to file or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file distribute any such proposed amendment or supplement to which you 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.
(c) To furnish to you a copy of each proposed free writing prospectus or Other Material (to the extent it is in writing) 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 or Other Material (to the extent it is in writing) to which you reasonably object.
(d) To comply with the requirements of the Underwriters reasonably objects FIEA, and which is not to notify you immediately, and confirm the notice in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters writing, (ia) when any post-effective amendment to the Registration StatementSRS shall be filed, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and or any supplement thereto, to the Japanese Prospectus or any amended Japanese Prospectus shall have been filed with the Commission pursuant to Rule 424(b); prepared, (iiib) when, prior to termination of the offering receipt of any comments from the CertificatesKLFB, any amendment to the Registration Statement shall have been filed or become effective; (ivc) of any request by the Commission KLFB for any amendment of to the Registration Statement SRS or any amendment or supplement to the Final Japanese Prospectus or for any other additional information; , and (vd) of the issuance by the Commission KLFB of any stop order suspending the effectiveness of the Registration Statement SRS or the institution of any proceeding for that purpose; and (vi) of order preventing or suspending the receipt by CPS use of any notification with respect to Japanese Prospectus, or of the suspension of the qualification of the Certificates Shares for offering or sale in any jurisdiction jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposepurposes. CPS The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedany stop order is issued, to obtain as soon as possible the withdrawal thereoflifting thereof at the earliest practical moment.
(be) Prior To, notify you, if practicable, prior to and in any event simultaneously with issuing any announcement concerning or which could have a material adverse effect on the filing thereof with the Commission, CPS will submit to each marketability of the UnderwritersShares between the date of this Agreement and the date 60 days after the Listing Date (both dates inclusive). Between the date of this Agreement and until the Listing Date, for its approval after reasonable notice thereofthe Company will not issue any public announcement or participate in any press or other financial conference in Japan or elsewhere which could be material in the context of the offering of the Shares without the prior written consent of MUMSS, such approval consent not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(cf) The If the Company becomes aware of a relationship between (i) the Company and (ii) any Anti-social Forces, the Company will deliver to, immediately inform MUMSS of such fact and any details thereof; and if the Company becomes aware of any fact that would render the representations and warranties made in Section 1(t) hereof untrue or upon the order ofincorrect, the Underwriters, from time to time, as many copies of any Preliminary Final Prospectus as the Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably requestalso immediately notify MUMSS.
(dg) The Company will, and will cause To use the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required net proceeds received by law to be delivered by an Underwriter or dealer in connection with it from the sale of any Certificates, the Firm Shares pursuant to this Agreement in the manner specified in the Japanese Prospectus under the caption “Use of Proceeds”.
(h) If any event shall occur or condition exist as a result of whichwhich the Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes is necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or applicable law, forthwith to prepare, file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 ActCommission and furnish, the Company will promptly notify each of at its own expense, to the Underwriters and will promptly to any dealer upon request, either (i) prepare and file, amendments or cause to be prepared and filed, with the Commission an appropriate amendment supplements to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when it the Prospectus is so delivereddelivered to a prospective purchaser, be misleadingmisleading or so that the Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Final Prospectus Prospectus, as amended or supplemented, will comply with applicable law.
(ei) The Company will cooperate with 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 endeavoring lieu thereof the notice referred to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution Rule 173(a) of the CertificatesSecurities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, except that the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business event shall occur or condition exist as a foreign corporation, file a general or unlimited consent to service result of process or subject itself to taxation in any such jurisdiction to 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) of the Securities Act) is delivered to a purchaser, not subject and will arrange misleading, or if, in the opinion of counsel for the determination Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the legality 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 Certificates for purchase by institutional investors. The Company will, from time circumstances when the Prospectus (or in lieu thereof the notice referred to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution Rule 173(a) of the CertificatesSecurities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(fj) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to To make generally available to Certificateholders the Company’s security holders and to you as soon as practicable, but no later than sixteen months after the Effective Date, practicable an earnings statement of the Trust covering a period of at least twelve consecutive months beginning with the first fiscal quarter of the Company occurring after such Effective Date and satisfying the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act (including Rule 158 promulgated thereunder).
(j) So long as any and the rules and regulations of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably requestthereunder.
(k) On or before To have the Closing Date, Common Stock approved for listing on the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records Mothers Market of the Company Tokyo Stock Exchange and CPS admitted to trading by Listing Time or as soon as practicable thereafter, and Samco relating to use its best efforts to maintain the Receivables to be marked to show the Trustee's absolute ownership listing of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing AgreementCommon Stock.
(l) To file with the extentKLFB annual securities reports or quarterly reports, and (if anynecessary) extraordinary reports or any other documents as required under the FIEA, that and otherwise to comply in all material respects with the ratings provided with respect laws and regulations of Japan (including the FIEA and regulations of the Tokyo Stock Exchange) applicable to the Certificates by either Company; and to furnish to you a copy of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actionspublic documents as MUMSS may reasonably request from time to time in writing.
(m) On The Company will promptly notify MUMSS if the Closing DateCompany ceases to be an Emerging Growth Company at any time prior to the completion of the distribution of the Shares within the meaning of the Securities Act.
(n) If MUMSS, in its sole discretion, agrees to release or waive the restrictions set forth in the Lock-up Letter for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company and CPS shall cause agrees to announce the Certificate Insurer to issue impending release or waiver by a press release substantially in the Policy to form of Exhibit B hereto through a major news service at least two business days before the Trustee for the benefit effective date of the holders of the Certificates in form and substance satisfactory to each Underwriterrelease or waiver.
Appears in 1 contract
Covenants of the Company. The Company hereby covenants and agrees with the several Underwriters that:
(a) CPS will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the CertificatesOffered Notes, CPS the Company will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Basic Prospectus or any Rule 462(b) Registration Statement unless CPS the Company has furnished to each of the Underwriters a copy for its their review prior to filing and will not file any such proposed amendment or supplement to which any of Underwriter reasonably objects. Subject to the Underwriters reasonably objects and which is not in compliance foregoing sentence, the Company will cause the Final Prospectus to be filed with the 1933 Act RegulationsCommission pursuant to Rule 424. CPS The Company will promptly advise the Underwriters promptly (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, Prospectus shall have been filed with the Commission pursuant to Rule 424(b); 424, (iiiii) when, prior to termination of the offering of the Certificates, when any amendment to the Registration Statement relating to the Offered Notes shall have been filed or become effective; , (iviii) of any request by the Commission for any amendment of the Registration Statement or amendment of or supplement to the Final Prospectus or for any other additional information; , (viv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; purpose and (viv) of the receipt by CPS the Company of any notification with respect to the suspension of the qualification of the Certificates Offered Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. CPS The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued or suspendedissued, to obtain as soon as possible the withdrawal thereof.
(b) Prior The Company will use its best efforts to cause any Computational Materials, Collateral Term Sheets and ABS Term Sheets (each as defined in Section 11 below) with respect to the filing thereof Offered Notes which are delivered by the Underwriters to the Company pursuant to Section 11 to be filed with the Commission on a Current Report on Form 8-K (the “Current Report”) pursuant to Rule 13a-11 under the Exchange Act not later than the business day immediately following the day on which such Computational Materials, Collateral Term Sheets or ABS Term Sheets are delivered to counsel for the Company by the Underwriters as provided in Section 11, and will promptly advise the Underwriters when such Current Report has been so filed. Such Current Report shall be incorporated by reference in the Final Prospectus and the Registration Statement. Notwithstanding the two preceding sentences, the Company shall have no obligation to file materials provided by the Underwriters pursuant to Section 11 which, in the reasonable determination of the Company after making reasonable efforts to consult with the Underwriters, are not required to be filed pursuant to the No-Action Letters (as defined in Section 11 below), or which contain erroneous information or contain any untrue statement of a material fact or which, when read in conjunction with the Final Prospectus, omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood, however, that the Company shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any Computational Materials, Collateral Term Sheets or ABS Term Sheets provided by the Underwriters to the Company pursuant to Section 11 hereof.
(c) If, at any time when a prospectus relating to the Offered Notes is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, CPS subject to the first sentence of paragraph (a) of this Section 5, an amendment or supplement which will submit correct such statement or omission or an amendment which will effect such compliance and will use its best efforts to each of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of cause any post-- required post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement proposed containing such amendment to be filed made effective as soon as possible; provided, however, that the Company will not be required to file any such amendment or a copy of supplement with respect to any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be Computational Materials incorporated by reference into in the Registration Statement Final Prospectus other than any amendments or Final Prospectussupplements of such Computational Materials that are furnished to the Company pursuant to Section 11(d) hereof which the Company determines to file in accordance therewith.
(cd) The Company will deliver to, or upon furnish to the order of, Underwriters and counsel for the Underwriters, from time without charge, executed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to timethe Closing Date and, so long as delivery of a prospectus by the Underwriters or dealer may be required by the Act, as many copies of any Preliminary the Final Prospectus and any amendments thereof and supplements thereto (other than exhibits to the related Current Report) as the Underwriters may reasonably request. The Company will deliver to, or upon pay the order of, the Underwriters during the period when delivery expenses of a Final Prospectus is required under the 1933 Act, as many copies of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver printing all documents relating to the Underwriters at or before the Closing Dateinitial offering[, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith provided that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, as the Underwriters may from time to time reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any additional expenses incurred in connection with the sale requirement of any Certificates, any event shall occur as delivery of a result of which, in the judgment of the Company or in the reasonable opinion of market-making prospectus will be borne by the Underwriters, it becomes necessary to amend or supplement the Final Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Final Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Final Prospectus to comply with any law or to file under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense of the Company) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable law].
(e) The Company will furnish such information as may be required and otherwise cooperate with in qualifying the Underwriters in endeavoring to qualify the Certificates Offered Notes for sale under the laws of such jurisdictions as the Underwriters may reasonably designate and will to maintain such qualifications in effect so long as required for the distribution of the CertificatesOffered Notes; provided, except however, that the Company will shall not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company required to qualify to do business as a foreign corporation, file a in any jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which where it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for now so long a period as the Underwriters may reasonably request for distribution of the Certificatessubject.
(f) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Certificates in such a manner as would require the Company, CPS or the Trust to register as an investment company under the 1940 Act.
(g) Until the retirement of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee.
(h) The Company or CPS shall, from the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and the Final Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership of such Receivables, other than as expressly permitted by the Pooling and Servicing Agreement.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Wachovia Mortgage Loan Trust, LLC)
Covenants of the Company. The Company covenants and agrees with the several Underwriters thatas follows:
(a) CPS The Company, on or prior to the Closing Date, will use its best efforts deliver to cause the Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company is advised thereof, it will advise the Representative orally of the issuance of any stop order under the 1933 Act with respect to the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective as soon as reasonably practicable thereafter or, if the procedure in Rule 430A is followed, prepare and timely file with the Commission under Rule 424(b) a Final Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance upon Rule 430A. Prior to the termination of the offering of the Certificates, CPS will not file any amendment of the Registration Statement or amendment or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless CPS has furnished to each of the Underwriters a copy for its review prior to filing and will not file any such proposed amendment or supplement to which any of the Underwriters reasonably objects and which is not in compliance with the 1933 Act Regulations. CPS will promptly advise the Underwriters (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b); (iii) when, prior to termination of the offering of the Certificates, any amendment to the Registration Statement shall have been filed or become effective; (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any other additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose; proceedings therefor, of which the Company shall have received notice, and (vi) of the receipt by CPS of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation of any proceeding for such purpose. CPS will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued or suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior issued. The Company will deliver to the filing thereof with the Commission, CPS will submit to each Representative sufficient conformed copies of the Underwriters, for its approval after reasonable notice thereof, such approval not to be unreasonably withheld or delayed, a copy of any post-- effective amendment to the Registration Statement, any Rule 462(bthe Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) Registration Statement proposed for distribution to be filed or a copy of any document proposed to be filed under the 1934 Act before the termination of the offering of the Certificates by the Underwriters if such document would be deemed to be incorporated by reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwritersand, from time to time, as many copies of any Preliminary the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request. request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will deliver to, or upon the order of, furnish the Underwriters during with c▇▇▇▇▇ ▇▇ each amendment and supplement to the period when delivery of a Final Supplemented Prospectus is required under relating to the 1933 Act, as many copies offering of the Final Prospectus, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to the Underwriters at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Senior Notes in such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents filed under the 1934 Act and deemed to be incorporated by reference therein, and of all amendments thereto, quantities as the Underwriters may from time to time reasonably request.
(d) The Company will. If, and will cause the Trust to, comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Certificates as contemplated in this Agreement and the Final Prospectus. If during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered by an Underwriter or dealer in connection with the sale of any CertificatesSenior Notes by an Underwriter, any event relating to or affecting the Company, or of which the Company shall occur as a result of whichbe advised in writing by the Underwriters, shall occur, which in the judgment opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the reasonable opinion light of the Underwriterscircumstances when it is delivered, or if for any other reason it becomes shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Senior Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Senior Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Final Prospectus is delivered Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a purchasertimely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company shall not misleadingfile such documents or amendments without also furnishing copies thereof prior to such filing to the Representative and Dewey Ballantine LLP.
(c) The Company will endeavor, or▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇nderwriters, if to qualify the Senior Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Representative may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is necessary at any time not so qualified or to amend file a consent to service of process or supplement the Final Prospectus to file annual reports or to comply with any law or other requirements in connection with such qualification deemed by the Company to file be unduly burdensome.
(d) The Company will make generally available to its security holders as soon as practicable but not later than 45 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the rules and regulations under the 1934 Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the 1933 Act or the 1934 Act, the Company will promptly notify each of the Underwriters and will promptly either (i) prepare and file, or cause to be prepared and filed, with the Commission an appropriate amendment to the Registration Statement or supplement to the Final Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the Commission (at the expense covering a twelve-month period beginning not later ▇▇▇▇ ▇he first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) an appropriate filing under the 1934 Act which shall be incorporated by reference in the Final Prospectus so that the Final Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Final Prospectus will comply with applicable lawRegistration Statement.
(e) The Company will cooperate with use its best efforts to effect the Underwriters in endeavoring to qualify the Certificates for sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution listing of the Certificates, except that Senior Notes on the Company will not be obligated to qualify the Certificates in any jurisdiction in which such qualification would require the Company to qualify to do business as a foreign corporation, file a general or unlimited consent to service of process or subject itself to taxation in any such jurisdiction to which it is not subject and will arrange for the determination of the legality of the Certificates for purchase by institutional investors. The Company will, from time to time, prepare and file such statements, reports, and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the CertificatesNew York Stock Exchange.
(f) The During a period of 15 days from the date of this Agreement, the Company shall not investwill not, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise use dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the proceeds received by Senior Notes or any debt securities substantially similar to the Company from its sale Senior Notes (except for the Senior Notes issued pursuant to this Agreement). The Representative agrees that commercial paper or other debt securities with scheduled maturities of the Certificates in such a manner as would require the Company, CPS or the Trust less than one year are not subject to register as an investment company under the 1940 Actthis Section 3(f).
(g) Until As soon as practicable after the retirement date of the Certificates, or until such time as the Underwriters shall cease to maintain a secondary market in the Certificates, whichever occurs first, the Company will deliver to each Underwriter the annual statements of compliance and the annual independent certified public accountant's reports furnished to the Trustee pursuant to the Pooling and Servicing this Agreement, as soon as such statements and reports are furnished to in any event within the Trustee.
(h) The Company or CPS shall, from time prescribed by Rule 424 under the date hereof through and including the Closing Date, furnish, or cause to be furnished, or make available, or cause to be made available1933 Act, to each Underwriter or its counsel such additional documents and information regarding each of them and their respective affairs as each Underwriter may from time to time reasonably request and which the Company or CPS possess or can acquire without unreasonable effort or expense, including any and all documentation requested in connection with such Underwriter's due diligence efforts regarding information in the Registration Statement and file the Final Supplemented Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement; and all actions taken by the Company or CPS to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to each Underwriter.
(i) The Company will cause the Trust to make generally available to Certificateholders as soon as practicable, but no later than sixteen months after the Effective Date, an earnings statement of the Trust covering a period of at least twelve consecutive months beginning after such Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(j) So long as any of the Certificates are outstanding, the Company will furnish to the Underwriters copies of all reports or other communications (financial or otherwise) furnished or made available to Certificateholders, and deliver to the Underwriters during such period, (i) as soon as they are available, copies of any reports and financial statements filed by or on behalf of the Trust or the Company with the Commission pursuant and to advise the Securities Exchange Act of 1934, as amended, and (ii) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(k) On or before the Closing Date, the Company and CPS and ▇▇▇▇▇ shall cause the respective computer records of the Company and CPS and Samco relating to the Receivables to be marked to show the Trustee's absolute ownership of the Receivables, and from and after the Closing Date neither the Company nor CPS nor Samco shall take any action inconsistent with the Trustee's ownership Representative of such Receivables, other than as expressly permitted by the Pooling filing and Servicing Agreementto confirm such advice in writing.
(l) To the extent, if any, that the ratings provided with respect to the Certificates by either of the Rating Agencies is conditional upon the furnishing of documents or the taking of any other actions by the Company or CPS, CPS shall, or shall cause the Company to, furnish such documents and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Certificate Insurer to issue the Policy to the Trustee for the benefit of the holders of the Certificates in form and substance satisfactory to each Underwriter.
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