Covenants of the Issuers. The Issuers, jointly and severally, covenant and agree with each of the Underwriters that: (a) The Issuers will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and the Issuers will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers 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 is required in connection with the offering or sale of the Securities; and the Issuers will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day following the date of this Agreement in such quantities as the Representatives may reasonably request. The Issuers will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date. (b) The Issuers will not amend or supplement any of the Registration Statement, the Time of Sale Information or the Prospectus or any amendment or supplement thereto of which the Representatives shall not previously have been advised and furnished a copy for a reasonable period of time prior thereto and as to which the Representatives shall not have given their consent. The Issuers will promptly, upon the reasonable request of the Representatives or counsel for the Underwriters, make any amendments or supplements to any of the Registration Statement, the Time of Sale Information or the Prospectus that may be necessary or advisable in connection with the resale of the Securities by the Underwriters. (c) If requested by the Representatives, the Issuers will cooperate with the Underwriters in arranging for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of such jurisdictions as the Underwriters may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject. (d) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object. (e) If, during the Prospectus Delivery Period, any event occurs or information becomes known as a result of which any of the Registration Statement, the Time of Sale Information or the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Information or the Prospectus to comply with applicable law, the Issuers will promptly notify the Representatives thereof and will prepare, at the expense of the Issuers, an amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus that corrects such statement or omission or effects such compliance. (f) The Issuers will deliver, without charge, to the Representatives, during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
Appears in 5 contracts
Sources: Underwriting Agreement (Directv), Underwriting Agreement (Directv), Underwriting Agreement (Directv)
Covenants of the Issuers. The IssuersIssuers and the Guarantors, jointly and severally, covenant and agree with each of the Underwriters that:
(a) The Issuers will file the final Final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, ; that they will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet) to the extent required by Rule 433 under the Securities Act, ; and the Issuers will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SecuritiesNotes; and the Issuers will furnish copies of the Final Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M.a.m., New York City time, on the second business day following next succeeding the date of this Agreement in such quantities as the Representatives Representative may reasonably request. The Issuers will pay the registration fees for this relating to the offering of the Notes within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) The Issuers will not amend or supplement any of the Registration Statement, the Time of Sale Information or the Prospectus or any amendment or supplement thereto of which the Representatives shall not previously have been advised and furnished a copy for a reasonable period of time prior thereto and as to which the Representatives shall not have given their consent. The Issuers will promptly, upon the reasonable request of the Representatives or counsel for the Underwriters, make any amendments or supplements to any of the Registration Statement, the Time of Sale Information or the Prospectus that may be necessary or advisable in connection with the resale of the Securities by the Underwriters.
(c) If requested by the Representatives, the Issuers will cooperate with the Underwriters in arranging for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of such jurisdictions as the Underwriters may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(d) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(e) If, during the Prospectus Delivery Period, any event occurs or information becomes known as a result of which any of the Registration Statement, the Time of Sale Information or the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Information or the Prospectus to comply with applicable law, the Issuers will promptly notify the Representatives thereof and will prepare, at the expense of the Issuers, an amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus that corrects such statement or omission or effects such compliance.
(f) The Issuers will deliver, without charge, (i) to the RepresentativesRepresentative, if requested, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Final Prospectus (including all amendments and supplements thereto and documents incorporated by reference thereinthereto) and each Issuer Free Writing Prospectus as the Representatives Representative may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters Applicable Time that a prospectus relating to the Securities Notes is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities Notes by any Underwriter or dealer.
Appears in 2 contracts
Sources: Underwriting Agreement (Tesoro Logistics Lp), Underwriting Agreement (Tesoro Logistics Lp)
Covenants of the Issuers. The Issuers, jointly and severally, Issuers covenant and agree with each of the Underwriters Initial Purchasers that:
(a) The Issuers will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and the Issuers will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers 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 is required in connection with the offering or sale of the Securities; and the Issuers will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day following the date of this Agreement in such quantities as the Representatives may reasonably request. The Issuers will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) The Issuers will not amend or supplement any of the Registration Statement, the Time of Sale Information or the Prospectus Memorandum or any amendment or supplement thereto of which the Representatives Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time (which shall not in any case be longer than three business days) prior thereto to the proposed amendment or supplement and as to which the Representatives Initial Purchasers shall not have given their consentconsent (which shall not be unreasonably withheld). The Issuers will promptly, upon the reasonable request of the Representatives or counsel for the UnderwritersInitial Purchasers, make any amendments or supplements to any of the Registration Statement, the Time of Sale Information or the Prospectus Memorandum that may be necessary or advisable in connection with the resale of the Securities by the UnderwritersInitial Purchasers (except to the extent any such amendment or supplement requested would, in the reasonable judgment of the Issuers, render the statements made in the Memorandum, as proposed to be amended or supplemented, misleading).
(cb) If requested by the Representatives, the The Issuers will cooperate with the Underwriters Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or “"Blue Sky” " laws and securities laws of such jurisdictions any relevant jurisdiction, including the United States and any relevant European country, as the Underwriters Initial Purchasers may reasonably designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers no Issuer shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(d) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(ec) If, during at any time prior to the Prospectus Delivery Periodearlier of 90 days after the Closing Date and the completion of the distribution by the Initial Purchasers of the Securities, any event occurs or information becomes known as a result of which any which, in the opinion of counsel for the Registration StatementInitial Purchasers or counsel for the Issuers, the Time of Sale Information or the Prospectus Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Information or the Prospectus Memorandum to comply with applicable law, the Issuers will promptly notify the Representatives Initial Purchasers thereof and will prepare, at the expense of the Issuers, an amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus Memorandum that corrects such statement or omission or effects such compliance.
(fd) The Issuers will deliverwill, without charge, provide to the Representatives, during Initial Purchasers and to counsel for the Prospectus Delivery Period (as defined below), Initial Purchasers as many copies of the Prospectus (including all amendments Memorandum and supplements any amendment or supplement thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives Initial Purchasers may reasonably request. As used herein, .
(e) The Issuers will apply the term “Prospectus Delivery Period” means such period of time after proceeds from the first date of the public offering sale of the Securities as set forth under "Use of Proceeds" in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered Memorandum.
(or required to be delivered but for Rule 172 under the Securities Actf) in connection with sales For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by any Underwriter of the Issuers to the Trustee or dealerto the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by any of the Issuers with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim consolidated financial statements of ▇▇▇▇▇▇▇, if any, for any period subsequent to the period covered by the most recent financial statements appearing in the Memorandum.
(h) None of the Issuers or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Act of the Securities.
(i) None of the Issuers, any of their affiliates (as defined in Rule 501 under the Act) nor any person acting on their behalf (excluding the Initial Purchasers as to which no representation is made) will offer or sell the Notes by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Act or, with respect to Notes offered or sold outside the United States, by means of any "directed selling efforts" within the meaning of Regulation S.
(j) For so long as any of the Securities remain outstanding, the Issuers will make available at their expense, upon request, to any seller and any prospective purchaser designated by such seller of such Securities the information specified in Rule 144A(d)(4) under the Act, unless all the Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use their reasonable best efforts to (i) permit the Securities to be designated as PORTAL-eligible securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers ("NASD") relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through DTC.
(l) The Issuers will use their reasonable best efforts to (i) effect the listing of the Securities on the Luxembourg Stock Exchange as soon as is practicable and (ii) maintain the listing of the Securities on the Luxembourg Stock Exchange for so long as the Securities are outstanding.
(m) The Issuers shall cause Brightfield Corporation not to engage in any action other than those solely related to its liquidation.
Appears in 2 contracts
Sources: Purchase Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Covenants of the Issuers. The Issuers, jointly and severally, covenant and agree with each of the Underwriters that:
(a) The Issuers will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and the Issuers will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers 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 is required in connection with the offering or sale of the Securities; and the Issuers will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day following the date of this Agreement in such quantities as the Representatives may reasonably request. The Issuers will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) The Issuers will not amend or supplement any of the Registration Statement, the Time of Sale Information or the Prospectus or any amendment or supplement thereto of which the Representatives shall not previously have been advised and furnished a copy for a reasonable period of time prior thereto and as to which the Representatives shall not have given their consent. The Issuers will promptly, upon the reasonable request of the Representatives or counsel for the Underwriters, make any amendments or supplements to any of the Registration Statement, the Time of Sale Information or the Prospectus that may be necessary or advisable in connection with the resale of the Securities by the Underwriters.
(c) If requested by the Representatives, the Issuers will cooperate with the Underwriters in arranging for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of such jurisdictions as the Underwriters may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(d) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(e) If, during the Prospectus Delivery Period, any event occurs or information becomes known as a result of which any of the Registration Statement, the Time of Sale Information or the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Information or the Prospectus to comply with applicable law, the Issuers will promptly notify the Representatives thereof and will prepare, at the expense of the Issuers, an amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus that corrects such statement or omission or effects such compliance.
(f) The Issuers will deliver, without charge, to the Representatives, during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.the
Appears in 1 contract
Sources: Underwriting Agreement (Directv)
Covenants of the Issuers. The Issuers, jointly Each of the Issuers covenants and severally, covenant and agree agrees with each of the Underwriters that:
(a) The Issuers Company will file the final Final Prospectus and any amendment or supplement thereto with the Commission within in the time periods specified by Rule 424(b) manner and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and the Issuers will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers 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 is required in connection with the offering or sale of the Securities; and the Issuers will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day following the date of this Agreement in such quantities as the Representatives may reasonably request. The Issuers will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i424(b) under the Securities Act (without giving effect Act. During any time when a prospectus relating to the proviso thereinSecurities is required to be delivered under the Act, (i) the Company will comply with all requirements imposed upon it by the Act, the Rules and in any event prior Regulations, the Exchange Act Regulations and the TIA to the Closing Date.
extent necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and of the Final Prospectus, as then amended or supplemented, and (bii) The Issuers the Company will not amend or supplement any of file with the Registration Statement, Commission the Time of Sale Information or the Final Prospectus or any amendment or supplement thereto to the Final Prospectus or any amendment to the Registration Statement of which the Representatives shall not previously have been advised and furnished a copy for a reasonable period of time prior thereto to the proposed filing and as to which filing the Representatives shall not have given their consentconsented, which consent shall not be unreasonably withheld. The Issuers Company will promptlyprepare and file with the Commission, in accordance with the Act, the Rules and Regulations, the Exchange Act Regulations and the TIA, promptly upon the reasonable request of by the Representatives or counsel for the Underwriters, make any amendments to the Registration Statement or amendments or supplements to any of the Registration Statement, the Time of Sale Information or the Final Prospectus that may be necessary or advisable in connection with the resale distribution of the Securities by the Underwriters, and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective by the Commission promptly. The Company will advise the Representatives, promptly after it receives notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Final Prospectus or any amendment or supplement to the Final Prospectus has been filed and will provide evidence satisfactory to the Representatives of each such filing or effectiveness.
(b) The Company will advise the Representatives, promptly after receiving notice or obtaining knowledge thereof, of (i) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any portion thereof or any amendment thereto or any order preventing or suspending the use of the Final Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, (iii) the institution, threatening or contemplation of any proceeding for any such purpose or (iv) any request made by the Commission for amending the Registration Statement, for amending or supplementing the Final Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(c) If requested by the Representatives, the Issuers The Company will cooperate with the Underwriters Representatives in arranging for the qualification of the Securities for offering and sale under the securities or “"Blue Sky” " laws of such jurisdictions as the Underwriters Representatives may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale distribution of the Securities; provided, however, provided that in connection therewith, none of therewith the Issuers Company shall not be required to qualify as a foreign corporation or corporation, to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectjurisdiction.
(d) Before makingIf, preparing, using, authorizing, approving or referring to at any Issuer Free Writing Prospectus, the Company will furnish time when a prospectus relating to the Representatives and counsel for Securities is required to be delivered under the Underwriters a copy of such Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(e) If, during the Prospectus Delivery PeriodAct, any event occurs or information becomes known as a result of which any of the Registration Statement, the Time of Sale Information or the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Registration Statement, the Time of Sale Information or the Final Prospectus to comply with applicable lawthe Act or the Rules and Regulations, the Issuers Company will promptly notify the Representatives thereof and, subject to Section 5(a) hereof, will prepare and will preparefile with the Commission, at the expense of Company's expense, an amendment to the Issuers, Registration Statement or an amendment or supplement to the Registration Statement, the Time of Sale Information or the Final Prospectus that corrects such statement or omission or effects such compliance.
(fe) The Issuers will deliverCompany will, without charge, provide (i) to the Representatives, during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments Underwriters and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of to counsel for the Underwriters a conformed copy of the Registration Statement and each amendment thereto (in each case including exhibits thereto) and (ii) so long as a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act, as many copies of the Final Prospectus and any amendment or supplement thereto as the Underwriters may reasonably request.
(f) in connection with sales The Company, as soon as practicable, will make generally available to holders of the Securities and to the Underwriters consolidated earnings statements of the Company and its subsidiaries (which need not be certified by an independent public accountant) that satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Prospectus.
(h) For so long as any Underwriter Securities remain outstanding, the Company will furnish to the Underwriters through Deutsche Bank Securities Inc. copies of all reports and other communications (financial or dealerotherwise) furnished by the Company to the Trustee or the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
Appears in 1 contract
Sources: Underwriting Agreement (Fleming Companies Inc /Ok/)
Covenants of the Issuers. The Issuers, jointly and severally, Issuers covenant and agree with each of the Underwriters Initial Purchasers that:
(a) The Issuers will file prepare the final Prospectus with Preliminary Memorandum, the Commission within Offering Memorandum and the time periods specified Final Memorandum in the form approved by Rule 424(b) the Representatives and Rule 430Awill not amend or supplement the Preliminary Memorandum, 430B the Offering Memorandum or 430C under the Securities Act, will file any Issuer Free Writing Prospectus Final Memorandum without first furnishing to the extent required by Rule 433 under the Securities Act, Representatives a copy of such proposed amendment or supplement and the Issuers will file promptly all reports and not use any definitive proxy amendment or information statements required supplement to be filed by the Issuers 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 is required in connection with the offering or sale of the Securities; and the Issuers will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day following the date of this Agreement in such quantities as which the Representatives may reasonably request. The Issuers will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Dateobject.
(b) The Issuers will not amend or supplement any of furnish to the Registration Statement, Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale Information or and during the Prospectus or any amendment or supplement thereto of which the Representatives shall not previously have been advised and furnished a copy for a reasonable period of time prior thereto and referred to in paragraph (c) below, without charge, as to which the Representatives shall not have given their consent. The Issuers will promptly, upon the reasonable request many copies of the Representatives or counsel for Preliminary Memorandum and the Underwriters, make Offering Memorandum and any amendments or and supplements to any of the Registration Statement, the Time of Sale Information or the Prospectus that thereto as they reasonably may be necessary or advisable in connection with the resale of the Securities by the Underwritersrequest.
(c) If requested by the Representatives, the Issuers will cooperate with the Underwriters in arranging for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of such jurisdictions as the Underwriters may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(d) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing ProspectusWritten Communication, the Company Partnership will furnish to the Representatives and counsel for the Underwriters Initial Purchasers a copy of such Issuer Free Writing Prospectus written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(ed) IfAt any time prior to the completion of the distribution of the Notes by the Initial Purchasers, during the Prospectus Delivery Period, if any event occurs or information becomes known condition exists as a result of which any of the Registration Statement, the Time of Sale Information Preliminary Memorandum or the Prospectus Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Registration Statement, the Time of Sale Information Preliminary Memorandum or the Prospectus Offering Memorandum, to comply with applicable law, the Issuers will promptly (i) notify the Representatives thereof Initial Purchasers of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Issuerstheir own expense, an amendment or supplement to the Registration Statement, the Time of Sale Information Preliminary Memorandum or the Prospectus Offering Memorandum, so that corrects the statements in the Preliminary Memorandum or the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances when the Preliminary Memorandum or the Offering Memorandum is delivered to a purchaser, be misleading or so that the Preliminary Memorandum or the Offering Memorandum, as amended or supplemented, will comply with applicable law; and (iii) supply any supplemented or amended Preliminary Memorandum or Offering Memorandum to the Initial Purchasers and Counsel for the Initial Purchasers, without charge, in such statement quantities as may be reasonably requested.
(e) The Issuers will (i) cooperate with the Initial Purchasers to qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives may designate and (ii) maintain such qualifications for so long as required for the sale of the Notes by the Initial Purchasers. The Issuers will promptly advise the Initial Purchasers of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or omission the initiation or effects threatening of any proceeding for such compliancepurpose. None of the Issuers or any of the Guarantors shall be required to qualify as a foreign corporation or other entity or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or other entity.
(f) At any time prior to the completion of the distribution of the Notes by the Initial Purchasers, the Issuers will deliver to the Initial Purchasers such additional information concerning the business and financial condition of the Issuers and the Guarantors as the Initial Purchasers may from time to time request and whenever it or any of its subsidiaries publishes or makes available to the public (by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Issuers will deliver, without charge, to likewise notify the Representatives, during Initial Purchasers of (i) any decrease in the Prospectus Delivery Period rating of the Notes or any other debt securities of an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined below)in Rule 436(g)(2) under the Securities Act) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, as many soon as the Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports and financial statements furnished to or filed with the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (Commission or required to be delivered but for to the Trustee or holders of the Notes pursuant to the Indenture or otherwise; provided, however, that if such reports or financial statements are publically available on the Commission's ▇▇▇▇▇ database, delivery to the Initial Purchasers shall not be required.
(g) During the period of one year after the Closing Date, the Issuers will not, and will not permit any of their Affiliates to, resell any of the Notes that constitute “restricted securities” under Rule 172 144 that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act or in accordance with Rule 144 under the Securities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(i) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(j) None the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(k) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any securities of the same or a similar class as the Notes, other than the Notes offered or sold to the Initial Purchasers hereunder, in a manner which would require the registration under the Securities Act of the Notes.
(l) So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, at any time that the Issuers are not then subject to Section 13 or 15(d) of the Exchange Act, the Issuers will provide at their expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(m) The Issuers will apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and the Offering Memorandum.
(n) Until completion of the distribution, neither the Issuers nor any of their Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(o) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE NOTES AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER OR AN ISSUER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(p) The Issuers will not, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities of an Issuer substantially similar to the Notes (other than the Notes offered pursuant to this Agreement) for a period of 60 days after the date hereof, without the prior written consent of ▇▇▇▇▇ Fargo Securities, LLC.
(q) The Issuers will, promptly after they have notified the Representatives of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or any successor form to the Representatives.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm's length contractual counterparty to the Issuers and the Guarantors with respect to the offering of the Notes and the Guarantees contemplated hereby (including in connection with sales determining the terms of the Securities offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers or any other person. Additionally, no Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuers or Guarantors with respect thereto. Any review by any Underwriter the Initial Purchasers of the Issuers or dealerthe Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Issuers or the Guarantors.
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