Agreements of Holdings. Holdings agrees with you as follows: (a) Before completion of the distribution of the Units by you, to advise you promptly and, if requested by you, confirm such advice in writing, (i) of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (ii) to advise you promptly, and if requested by you, confirm such advice in writing, of (A) the happening of any event that makes any statement of a material fact made in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they are made, not misleading and (B) the issuance of any quarterly or annual financial statements by Holdings or Anvil (copies of which shall be delivered to you within one business day after issuance). Holdings shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky laws, and if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky laws, Holdings shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (b) To furnish you, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. Holdings consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto, by you in connection with Exempt Resales and Agent Sales; provided, however, that the Initial Purchaser shall discontinue using such Preliminary Offering Memorandum or Offering Memorandum if advised by Holdings that the Preliminary Offering Memorandum or Offering Memorandum are to be amended or supplemented until such document is so amended or supplemented. (c) Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum prior to the Closing Date unless you shall previously have been advised thereof and shall not have objected thereto in writing within five business days after being furnished a copy thereof. Holdings shall promptly prepare, upon your request, any amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales and Agent Sales. (d) If, after the date hereof and prior to consummation of any Exempt Resales or Agent Sales, any event shall occur as a result of which, in the judgment of Holdings and its counsel or in the reasonable opinion of your counsel, it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances when the Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, promptly to prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements therein as so amended or supplemented will not, in the light of the circumstances when the Offering Memorandum is so delivered, be misleading, or so the Offering Memorandum will comply with applicable law. (e) To cooperate with you and your counsel in connection with the qualification of the Securities under the state securities or Blue Sky laws of such jurisdictions in the United States as you may request and to continue such qualification in effect so long as required for the Exempt Resales and Agent Sales; provided, however that Holdings shall not be required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales and Agent Sales, in any jurisdiction where it is not now so subject. Holdings will continue such qualification in effect so long as required by law for distribution of the Securities. (f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the preparation, printing, processing, distribution and delivery of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), (ii) the preparation (including, without limitation, word processing and duplication costs) printing, processing, distribution and delivery of this Agreement and the other Operative Documents (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by Holdings of the Securities, (iv) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of your counsel relating to such registration or qualification not to exceed $7,500), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of Holdings' counsel and accountants, (viii) the fees and expenses of the Trustee and its counsel under the Exchange Debenture Indenture, (ix) all expenses and listing fees in connection with the application for designation of the Senior Preferred Stock in the National Association of Securities Dealers, Inc. ("NASD") Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") market, (x) all fees and expenses (including fees and expenses of counsel) of Holdings in connection with the approval of the Securities by DTC for "book-entry" transfer, (xi) any fees charged by rating agencies for rating the Securities, (xii) all "road show" and other marketing expenses related to the preparation of slides, videotapes and printed marketing materials, and travel, hotel, food and entertainment expenses of affiliates of Holdings and (xiii) the performance by Holdings of its other obligations under this Agreement and the other Operative Documents. (g) To use the proceeds from the sale of the Units in the manner described in the Offering Memorandum under the caption "Use of Proceeds." (h) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Securities. (i) To do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Units that are within their control. (j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of the sale to you or Eligible Purchasers of the Securities. (k) For so long as any of the Securities remain outstanding and during any period in which Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available to any QIB or beneficial owner of the Securities in connection with any sale thereof and any prospective purchaser of such Securities from such QIB or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act. (l) To cause the Exchange Offer to be made in the appropriate form to permit registration of the Series B Senior Preferred Stock to be offered in exchange for the Series A Senior Preferred Stock and to comply with all applicable federal and state securities laws in connection with the Exchange Offer. (m) To use their best efforts to effect the inclusion of the Senior Preferred Stock in PORTAL. (n) During a period of five years following the date of this Agreement, to deliver to you promptly upon their becoming available, copies of all current, regular and periodic reports filed by Holdings or Anvil with the Commission or any securities exchange or with any governmental authority succeeding to any of the Commission's functions and such other publicly available information concerning Holdings and Anvil as the Initial Purchaser shall reasonably request. (o) Not to, and to use its reasonable best efforts to cause its affiliates not to, offer, sell, contract to sell or grant any option to purchase or otherwise transfer or dispose of any preferred stock or debt security issued or guaranteed by Holdings or Anvil (other than (i) the Units, the Senior Preferred Stock and the Class B Common comprising the Units, (ii) the Series A Senior Notes, (iii) the Series B Senior Notes, (iv) the Series B Senior Preferred Stock and (v) the Exchange Debentures issuable pursuant to the terms of the Senior Preferred Stock), or any security convertible into or exchangeable or exercisable for any such preferred stock or debt security, for a period of 90 days after the Closing Date, without your prior written consent. (p) Prior to or concurrently with the Closing, to enter into the Registration Rights Agreement in substantially the form attached hereto as Exhibit A in order to permit registration of the Series B Senior Preferred Stock to be offered in exchange for the Series A Senior Preferred Stock as contemplated thereby and/or the shelf registration of the Senior Preferred Stock. (q) To comply with all agreements set forth in the representation letter of Holdings to DTC relating to the approval of the Units by DTC for "book-entry" transfer. (r) During the two year period following the Closing Date, neither Holdings nor Anvil will, nor will they permit any of their affiliates (as defined for the purposes of Rule 144 under the Securities Act) to, resell any of the Units that may be acquired by any of them other than such Units as may be acquired by affiliates on the Closing Date. (s) To cause the Certificate of Designation to be filed with the appropriate authorities prior to the Closing Date.
Appears in 2 contracts
Samples: Purchase Agreement (Anvil Holdings Inc), Purchase Agreement (Cottontops Inc)
Agreements of Holdings. Holdings agrees with you as followsthe several Underwriters that:
(a) Before completion Holdings will cause any Holdings Preliminary Prospectus Supplement and the Holdings Prospectus Supplement to be filed pursuant to Rule 424 under the Act and will notify you promptly of such filing. During the period in which a prospectus relating to the SynDECS is required to be delivered under the Act, Holdings will notify you promptly of the time when any amendment to the Holdings Registration Statement has become effective or any subsequent supplement to the Holdings Prospectus has been filed and of any request by the Commission for any amendment of or supplement to the Holdings Registration Statement or the Holdings Prospectus or for additional information; it will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Holdings Registration Statement or Holdings Prospectus, which, in your opinion, may be necessary or advisable in connection with the distribution of the Units SynDECS by the Underwriters; it will file no amendment or supplement to the Holdings Registration Statement or the Holdings Prospectus (other than any prospectus supplement relating to the offering of securities other than the SynDECS registered under the Holdings Registration Statement or any document required to be filed under the Exchange Act which upon filing is deemed to be incorporated by reference therein) to which you shall reasonably object by notice to Holdings after having been furnished a copy a reasonable time prior to the filing; and it will furnish to you at or prior to the filing thereof a copy of any such prospectus supplement or any document which upon filing is deemed to be incorporated by reference in the Holdings Registration Statement or Holdings Prospectus.
(b) Holdings will advise you, to advise you promptly andafter it shall receive notice or obtain knowledge thereof, if requested by you, confirm such advice in writing, (i) of the issuance by any state securities commission the Commission of any stop order suspending the qualification or exemption from effectiveness of the Holdings Registration Statement, of the suspension of the qualification of any of the Securities SynDECS for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose by any state securities commission or other regulatory authority, purpose; and (ii) to advise you promptly, and if requested by you, confirm such advice in writing, of (A) the happening of any event that makes any statement of a material fact made in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they are made, not misleading and (B) the issuance of any quarterly or annual financial statements by Holdings or Anvil (copies of which shall be delivered to you within one business day after issuance). Holdings shall it will promptly use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky laws, and if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky laws, Holdings shall use its best efforts to obtain the its withdrawal or lifting of if such a stop order at the earliest possible time.
(b) To furnish you, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. Holdings consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto, by you in connection with Exempt Resales and Agent Sales; provided, however, that the Initial Purchaser shall discontinue using such Preliminary Offering Memorandum or Offering Memorandum if advised by Holdings that the Preliminary Offering Memorandum or Offering Memorandum are to should be amended or supplemented until such document is so amended or supplementedissued.
(c) Not to amend or supplement Within the Preliminary Offering Memorandum or the Offering Memorandum prior time during which a prospectus relating to the Closing Date unless you shall previously have been advised thereof SynDECS is required to be delivered under the Act, Holdings will comply with all requirements imposed upon it by the Act, as now and shall not have objected thereto hereafter amended, and by the Rules and Regulations, as from time to time in writing within five business days after being furnished a copy thereof. Holdings shall promptly prepareforce, upon your request, any amendment so far as necessary to permit the continuance of sales of or supplement to dealings in the Preliminary Offering Memorandum or SynDECS as contemplated by the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales and Agent Sales.
(d) If, after the date provisions hereof and prior to consummation of any Exempt Resales or Agent Sales, the Holdings Prospectus. If during such period any event shall occur occurs as a result of which, in which the judgment Holdings Prospectus as then amended or supplemented would include an untrue statement of Holdings and its counsel a material fact or in the reasonable opinion of your counsel, it becomes omit to state a material fact necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances when the Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaserthen existing, not misleading, or if during such period it is necessary to amend or supplement the Offering Memorandum Holdings Registration Statement or the Holdings Prospectus to comply with applicable lawthe Act, Holdings will promptly to prepare an appropriate amendment notify you and you will amend or supplement the Holdings Registration Statement or the Holdings Prospectus (at the expense of Holdings) so as to the Offering Memorandum so that the statements therein as so amended correct such statement or supplemented will not, in the light of the circumstances when the Offering Memorandum is so delivered, be misleading, omission or so the Offering Memorandum will comply with applicable laweffect such compliance.
(ed) To cooperate with you and your counsel in connection with Holdings will use its best efforts to qualify the qualification of the Securities SynDECS for sale under the state securities or Blue Sky laws of such jurisdictions in the United States as you may request and reasonably designate, to continue maintain such qualification qualifications in effect so long as required for the Exempt Resales and Agent Sales; provideddistribution of the SynDECS and, however if requested by the Underwriters, to arrange for the determination of the legality of the SynDECS for purchase by institutional investors, except that Holdings shall not be required in connection therewith to register or qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to the general or unlimited service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales and Agent Sales, in any jurisdiction where it is not now so subject. Holdings will continue such qualification in effect so long as required by law for distribution of the Securities.
(fe) Whether or not Holdings will furnish to the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the preparation, printing, processing, distribution and delivery of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), (ii) the preparation (including, without limitation, word processing and duplication costs) printing, processing, distribution and delivery of this Agreement and the other Operative Documents (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by Holdings of the Securities, (iv) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of your counsel relating to such registration or qualification not to exceed $7,500), (v) furnishing such Underwriters copies of the Preliminary Offering Memorandum Holdings Registration Statement and the Offering MemorandumHoldings Prospectus (including all documents incorporated by reference therein), and all amendments and supplements thereto, as may to the Holdings Registration Statement or the Holdings Prospectus which are filed with the Commission during the period in which a prospectus relating to the SynDECS is required to be reasonably requested for use in connection delivered under the Act (including all documents filed with Exempt Resales, (vi) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereofCommission during such period which are deemed to be incorporated by reference therein), in each case in such quantities as you may from time to time reasonably request.
(viif) So long as any of the feesSynDECS are outstanding, disbursements and expenses Holdings agrees to furnish to you, upon your request (i) as soon as available, copies of all reports to Holdings' counsel security holders generally and accountants, (viii) the fees and expenses of the Trustee and its counsel under the Exchange Debenture Indenture, (ixii) all expenses reports and listing fees in connection financial statements filed by or on behalf of Holdings with the application for designation of the Senior Preferred Stock in the National Association of Securities Dealers, Inc. ("NASD") Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") market, (x) all fees and expenses (including fees and expenses of counsel) of Holdings in connection with the approval of the Securities by DTC for "book-entry" transfer, (xi) Commission or any fees charged by rating agencies for rating the Securities, (xii) all "road show" and other marketing expenses related to the preparation of slides, videotapes and printed marketing materials, and travel, hotel, food and entertainment expenses of affiliates of Holdings and (xiii) the performance by Holdings of its other obligations under this Agreement and the other Operative Documentsnational securities exchange.
(g) To use Holdings will make generally available to its security holders and to you as soon as practicable, but in any event not later than 15 months after the proceeds from end of Holdings' current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the sale date upon which the Holdings Prospectus Supplement is filed pursuant to Rule 424 under the Act, which shall satisfy the provisions of Section 11(a) of the Units in the manner described in the Offering Memorandum under the caption "Use of ProceedsAct."
(h) Not Holdings will use its best efforts to voluntarily claim, cause an application for the listing of the SynDECS on the New York Stock Exchange and for the registration of the SynDECS under the Exchange Act to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Securitiesbecome effective.
(i) To do and perform all things required to be done and performed under this Agreement by them prior to or after Holdings will not, without the Closing Date and to satisfy all conditions precedent on their part to the delivery consent of the Units that are within their control.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of the sale to you or Eligible Purchasers of the Securities.
(k) For so long as any of the Securities remain outstanding and during any period in which Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available to any QIB or beneficial owner of the Securities in connection with any sale thereof and any prospective purchaser of such Securities from such QIB or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act.
(l) To cause the Exchange Offer to be made in the appropriate form to permit registration of the Series B Senior Preferred Stock to be offered in exchange for the Series A Senior Preferred Stock and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(m) To use their best efforts to effect the inclusion of the Senior Preferred Stock in PORTAL.
(n) During a period of five years following the date of this Agreement, to deliver to you promptly upon their becoming available, copies of all current, regular and periodic reports filed by Holdings or Anvil with the Commission or any securities exchange or with any governmental authority succeeding to any of the Commission's functions and such other publicly available information concerning Holdings and Anvil as the Initial Purchaser shall reasonably request.
(o) Not to, and to use its reasonable best efforts to cause its affiliates not toCitigroup Global Markets Inc., offer, sell, contract to offer or sell or grant any option to purchase or otherwise transfer or dispose of any preferred stock or debt security issued or guaranteed by Holdings or Anvil (other than (i) the Unitssecurities, the Senior Preferred Stock and the Class B Common comprising the Unitsincluding any backup undertaking for such securities, (ii) the Series A Senior Notesof Holdings, (iii) the Series B Senior Notes, (iv) the Series B Senior Preferred Stock and (v) the Exchange Debentures issuable pursuant in each case that are substantially similar to the terms of the Senior Preferred Stock), SynDECS or any security convertible into or exchangeable for the SynDECS or exercisable for any such preferred stock or debt securitysubstantially similar securities, for a during the period of 90 days after beginning the date hereof and ending the Closing Date, without your prior written consent.
(p) Prior to or concurrently with the Closingprovided however, to that Holdings and its affiliates may enter into the Registration Rights Agreement in substantially the form attached hereto as Exhibit A in order to permit registration of the Series B Senior Preferred Stock to be offered in exchange for the Series A Senior Preferred Stock as contemplated thereby and/or the shelf registration of the Senior Preferred Stock.
(q) To comply with all agreements set forth in the representation letter of Holdings to DTC hedging transactions relating to the approval of SynDECS and the Units by DTC for "book-entry" transfer.
(r) During the two year period following the Closing Date, neither Holdings nor Anvil will, nor will they permit any of their affiliates (as defined for the purposes of Rule 144 under the Securities Act) to, resell any of the Units that may be acquired by any of them other than such Units as may be acquired by affiliates on the Closing Date.
(s) To cause the Certificate of Designation to be filed with the appropriate authorities prior residual share agreement relating to the Closing DateSynDECS.
Appears in 2 contracts
Samples: Underwriting Agreement (General Electric Capital Corp), Underwriting Agreement (Regency Centers Corp)
Agreements of Holdings. Holdings hereby agrees with you the Initial Purchasers as follows:
(a) Before completion of To advise the distribution of the Units by you, to advise you Initial Purchasers promptly and, if requested by youthe Initial Purchasers, confirm such advice in writing, (i) of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding for such purpose by any state securities commission or any other federal or state regulatory authority, authority for such purpose and (ii) to advise you promptly, and if requested by you, confirm such advice in writing, of (A) the happening of any event during the period referred to in Section 5(c) below that makes any statement of a material fact made in the Preliminary Offering Memorandum or the Offering Memorandum untrue or that requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they are made, therein not misleading and (B) the issuance of any quarterly or annual financial statements by Holdings or Anvil (copies of which shall be delivered to you within one business day after issuance)misleading. Holdings shall use its commercially reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky lawslaws and, and if at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky laws, Holdings shall use its commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you, without charge, the Initial Purchasers and those persons identified by the Initial Purchasers to Holdings as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you the Initial Purchasers may reasonably request. Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, Holdings consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements theretothereto required pursuant hereto, by you the Initial Purchasers in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchasers an Offering Memorandum is required by law to be delivered in connection with Exempt Resales and Agent Sales; provided, however, that by the Initial Purchaser shall discontinue using such Preliminary Offering Memorandum or Offering Memorandum if advised by Holdings that the Preliminary Offering Memorandum or Offering Memorandum are Purchasers, (i) not to be amended or supplemented until such document is so amended or supplemented.
(c) Not to amend make any amendment or supplement the Preliminary Offering Memorandum or to the Offering Memorandum prior to which the Closing Date unless you Initial Purchasers shall previously not pre- viously have been advised thereof of and shall not have reasonably objected thereto in writing within five business days to after being furnished a copy thereof. Holdings shall so advised (except to the extent any such amendment or supplement is necessary, in the judgment of counsel to Holdings, in order to make the statements in the Offering Memorandum not misleading) and (ii) to prepare promptly prepare, upon your the Initial Purchasers' reasonable request, any amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum that which may be necessary or advisable in connection with such Exempt Resales and Agent Sales(except to the extent any such amendment or supplement requested would, in the judgment of counsel to Holdings, render the statements made in the Offering Memorandum, as proposed to be amended or supplemented, misleading).
(d) If, after during the date hereof and prior period referred to consummation of any Exempt Resales or Agent Salesin Section 5(c) above, any event shall occur or condition shall exist as a result of which, in the judgment of Holdings and its counsel or in the reasonable opinion of your counselcounsel to the Initial Purchasers, it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances when the such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaserPurchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement the Offering Memorandum to comply with any applicable law, promptly forthwith to prepare an appropriate amendment or supplement to the such Offering Memorandum so that the statements therein therein, as so amended or supplemented supplemented, will not, in the light of the circumstances when the Offering Memorandum it is so delivered, be misleading, or so the that such Offering Memorandum will comply with applicable law, and to furnish to the Initial Purchasers and such other persons as the Initial Purchasers may designate such number of copies thereof as the Initial Purchasers may reasonably request.
(e) To Prior to the sale of all Securities pursuant to Exempt Resales as contemplated hereby, to cooperate with you the Initial Purchasers and your counsel to the Initial Purchasers in connection with the registration or qualification of the Securities pursuant to Exempt Resales under the state securities or Blue Sky laws of such jurisdictions in as the United States as you Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales and Agent Salesto file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however however, that Holdings shall not be required in connection therewith to register or qualify as a foreign corporation where or limited liability company in any jurisdiction in which it is not now so qualified or to take any action that would subject it to the general consent to service of process in suits or taxation, taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales and Agent SalesResales, in any jurisdiction where in which it is not now so subject. Holdings will continue such qualification in effect so long as required by law for distribution of the Securities.
(f) Whether or not So long as the transactions contemplated by this Agreement Securities are consummated or this Agreement is terminatedoutstanding, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) to mail and make generally available as soon as practicable after the preparation, printing, processing, distribution and delivery end of each fiscal year to the record holders of the Preliminary Offering Memorandum Securities a financial report of Holdings and the Offering Memorandum its subsidiaries on a consolidated basis (includingand a similar financial report of all unconsolidated subsidiaries, without limitationif any), all such financial statements reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and exhibits) and all amendments and supplements thereto (but not, however, legal fees and expenses a consolidated statement of your counsel incurred in connection with any shareholders' equity as of the foregoing)end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by Holdings' independent public accountants and (ii) to mail and make generally available as soon as practicable after the preparation end of each quarterly period (includingexcept for the last quarterly period of each fiscal year) to such holders, without limitationa consolidated balance sheet, word processing a consolidated statement of operations and duplication costsa consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) printing, processing, distribution and delivery of this Agreement and the other Operative Documents (but not, however, legal fees and expenses of your counsel incurred in connection with any as of the foregoing)end of and for such period, and all preliminary for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year. In addition, so long as the Initial Purchasers or their affiliates hold Securities, Holdings shall furnish the Initial Purchasers or their affiliates with financial information on a monthly basis. Each Initial Purchaser on behalf of itself and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by Holdings its affiliates which become Holders of the Securities, (iv) agrees to maintain the qualification confidentiality of the information referred to in the preceding sentence and shall not be used other than in connection with its holding of Securities, except that such information may be disclosed (a) to its and its affiliates' directors, officers, employees and agents, including accountants, legal counsel and other advisors in connection with matters concerning the Securities for offer and sale under (it being understood that the securities or Blue Sky laws Persons to whom such disclosure is made will be informed of the several states (including, without limitation, the reasonable fees confidential nature of such information and disbursements of your counsel relating instructed to keep such registration or qualification not to exceed $7,500information confidential), (vb) furnishing such copies of to the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably extent requested for use in connection with Exempt Resalesby any regulatory authority, (vic) to the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof)extent required by applicable laws or regulations or by any subpoena or similar legal process, (viid) the fees, disbursements and expenses of Holdings' counsel and accountants, (viii) the fees and expenses of the Trustee and its counsel under the Exchange Debenture Indenture, (ix) all expenses and listing fees in connection with the application for designation exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Operative Document or the Senior Preferred Stock in the National Association enforcement of Securities Dealers, Inc. ("NASD") Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") marketrights hereunder or thereunder, (xe) all fees and expenses (including fees and expenses of counsel) with the consent of Holdings in connection with the approval of the Securities by DTC for "book-entry" transfer, or (xif) any fees charged by rating agencies for rating the Securities, (xii) all "road show" and other marketing expenses related to the preparation extent such information (i) becomes publicly available other than as a result of slides, videotapes and printed marketing materials, and travel, hotel, food and entertainment expenses a breach of this Section or (ii) becomes available to the Initial Purchasers or their affiliates of on a nonconfidential basis from a source other than Holdings and (xiii) the performance by Holdings of its other obligations under this Agreement and the other Operative Documentsor any Designated Subsidiary.
(g) To use For a period of five years following the proceeds from date of this Agreement, to furnish to the sale Initial Purchasers as soon as available copies of all reports or other communications furnished by Holdings or any of the Units in Designated Subsidiaries to its security holders or furnished to or filed with the manner described in Commission or any national securities exchange on which any class of securities of Holdings or any of the Offering Memorandum under Designated Subsidiaries is listed and such other publicly available information concerning Holdings and/or its subsidiaries as the caption "Use of ProceedsInitial Purchasers may reasonably request."
(h) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(i) To do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Units that are within their control.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of the sale to you or Eligible Purchasers of the Securities.
(k) For so So long as any of the Securities remain outstanding and during any period in which Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available to any QIB or beneficial owner holder of the Securities in connection with any sale thereof and any prospective purchaser of such Securities from such QIB or beneficial ownerholder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Securities Act.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incurred in connection with the performance of the obligations by Holdings under this Agreement, including: (i) the fees, disbursements and expenses of counsel to Holdings and accountants of Holdings in connection with the sale and delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, and all other fees or expenses (other than the fees and disbursements of counsel for the Initial Purchasers) in connection with the preparation, printing, filing, if any, and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements) specified in Section 5(b), 5(c) and 5(d) prior to or during the period specified in Section 5(c), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs, if any, of copying this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Securities, (iv) all expenses in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees in connection with such registration or qualification and memoranda relating thereto but excluding any fees and disbursements of counsel), (v) the cost of printing certificates representing the Securities, (vi) all expenses and listing fees in connection with the application for quotation of the Securities in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Notes, (viii) the fees and expenses of the Trustee and its counsel in connection with the Securities Pledge Agreement and any intercreditor agreements, (ix) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (x) any fees charged by rating agencies for the rating of the Notes, (xi) all costs and expenses of the Exchange Offer and any Registration Statement required to be borne by Holdings, as set forth in the Registration Rights Agreement, and (xii) all other costs and expenses as set forth in the Engagement Letter dated as of March 1, 1999 by and between the Company Notes Purchaser and the Company. Notwithstanding the foregoing, other than as set forth in the first sentence of the third paragraph of Section 11, Holdings shall not be obligated to pay any fees or disbursements of counsel for the Initial Purchasers.
(j) To use its commercially reasonable best efforts to effect the inclusion of the Notes in PORTAL and to maintain the listing of the Notes on PORTAL for so long as the Notes are outstanding.
(k) To use its commercially reasonable best efforts (i) to obtain the approval of DTC for "book-entry" transfer of the Notes and (ii) to comply in all material respects with all of its agreements set forth in the representation letters of Holdings to DTC relating to the approval of the Notes by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of Holdings, or any warrants, rights or options to purchase or otherwise acquire debt securities of Holdings substantially similar to the Securities (other than the Securities), without the prior written consent of the Initial Purchasers).
(m) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Securities to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Securities under the Act.
(n) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(o) To cause the Exchange Offer to be made in the appropriate form to permit registration of Exchange Notes registered pursuant to the Series B Senior Preferred Stock Act to be offered in exchange for the Series A Senior Preferred Stock and Notes to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(mp) To use their best efforts to effect the inclusion comply in all material respects with all of the Senior Preferred Stock its agreements set forth in PORTAL.
(n) During a period of five years following the date of this Agreement, to deliver to you promptly upon their becoming available, copies of all current, regular and periodic reports filed by Holdings or Anvil with the Commission or any securities exchange or with any governmental authority succeeding to any of the Commission's functions and such other publicly available information concerning Holdings and Anvil as the Initial Purchaser shall reasonably request.
(o) Not to, and to use its reasonable best efforts to cause its affiliates not to, offer, sell, contract to sell or grant any option to purchase or otherwise transfer or dispose of any preferred stock or debt security issued or guaranteed by Holdings or Anvil (other than (i) the Units, the Senior Preferred Stock and the Class B Common comprising the Units, (ii) the Series A Senior Notes, (iii) the Series B Senior Notes, (iv) the Series B Senior Preferred Stock and (v) the Exchange Debentures issuable pursuant to the terms of the Senior Preferred Stock), or any security convertible into or exchangeable or exercisable for any such preferred stock or debt security, for a period of 90 days after the Closing Date, without your prior written consent.
(p) Prior to or concurrently with the Closing, to enter into the Registration Rights Agreement, the Stockholders Agreement in substantially and the form attached hereto as Exhibit A in order to permit registration of the Series B Senior Preferred Stock to be offered in exchange for the Series A Senior Preferred Stock as contemplated thereby and/or the shelf registration of the Senior Preferred StockWarrant Agreement.
(q) To comply with all agreements set forth use the proceeds received from the sale of the Securities in the representation letter manner specified in the Offering Memorandum under the heading "Use of Holdings to DTC relating to the approval of the Units by DTC for Proceeds."book-entry" transfer.
(r) During the two year period following Prior to the Closing Date, neither Holdings nor Anvil willto furnish to the Initial Purchasers, nor will as soon as practicable after they permit have been prepared, a copy of any of their affiliates (as defined for the purposes of Rule 144 under the Securities Act) to, resell any unaudited interim consolidated financial statements of the Units that may be acquired Company for any period subsequent to the period covered by any of them other than such Units as may be acquired by affiliates on the Closing Datemost recent financial statements appearing in the Offering Memorandum.
(s) To cause the Certificate of Designation use commercially reasonable best efforts to do and perform all things required or necessary to be filed with the appropriate authorities done and performed under this Agreement by it prior to the Closing DateDate and to satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Agreements of Holdings. Holdings agrees with you as followsthe Initial Purchaser:
(a) Before completion of To advise the distribution of the Units by you, to advise you Initial Purchaser promptly and, if requested by youthe Initial Purchaser, to confirm such advice in writing, (i) of receipt of any notification with respect to the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Securities for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchaser pursuant to Section 5(f), or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and (ii) to advise you promptly, and if requested by you, confirm such advice in writing, of (A) the happening of any event that makes any statement of a material fact made in the Offering Memorandum Documents (or any amendment or supplement thereto) untrue or that requires the making of any additions to or changes in the Offering Memorandum Documents (or any amendment or supplement thereto) in order to make the statements therein, in the light of the circumstances under in which they are made, not misleading and (B) the issuance of any quarterly or annual financial statements by Holdings or Anvil (copies of which shall be delivered to you within one business day after issuance)misleading. Holdings shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any from qualification of the Securities under any state securities or Blue Sky laws, and and, if at any time any state securities commission or other regulatory authority shall issue an any stop order or order suspending the qualification or exemption from qualification of any of the Securities under any state securities or Blue Sky laws, Holdings shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish youto the Initial Purchaser, without charge, as many copies of the Preliminary Offering Memorandum and the Offering MemorandumDocuments, and any amendments or supplements thereto, as you the Initial Purchaser may reasonably request. Holdings consents to the use of the Preliminary Offering Memorandum and the Offering MemorandumDocuments, and any amendments and or supplements thereto, by you the Initial Purchaser in connection with Exempt Resales and Agent Sales; provided, however, that the Initial Purchaser shall discontinue using such Preliminary Offering Memorandum or Offering Memorandum if advised by Holdings that the Preliminary Offering Memorandum or Offering Memorandum are to be amended or supplemented until such document is so amended or supplementedResales.
(c) Not to amend or supplement the Preliminary Offering Memorandum Memorandum, whether before or after the Closing Date, unless (i) the Initial Purchaser has been previously advised thereof, and (ii) the Initial Purchaser has not reasonably objected thereto (unless in the opinion of counsel to Holdings such amendment or supplement is necessary, in the judgment of counsel to Holdings, to make the statements made in the Offering Memorandum prior not misleading); and to the Closing Date unless you shall previously have been advised thereof and shall not have objected thereto in writing within five business days after being furnished a copy thereof. Holdings shall promptly prepare, promptly upon your the Initial Purchaser's request, any amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum that may be the Initial Purchaser deems necessary or advisable in connection with Exempt Resales and Agent Sales(except to the extent any such amendment or supplement requested would, in the judgment of counsel to Holdings, render the statements made in the Offering Memorandum, as proposed to be amended or supplemented, misleading).
(d) If, after the date hereof and prior to consummation hereof, in the opinion of any Exempt Resales or Agent Salescounsel for the Initial Purchaser, any event shall occur as a result of which, in the judgment of Holdings and its counsel or in the reasonable opinion of your counsel, which it becomes necessary to amend or supplement the Offering Memorandum to comply with any law or to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum are delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, to promptly (i) prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements in the Offering Memorandum, as so amended or supplemented, will comply with all applicable laws and will not, in the light of the circumstances at the time it is so delivered, be misleading, and (ii) furnish the Initial Purchaser with such number of copies of the Offering Memorandum, as amended or supplemented, as the Initial Purchaser may reasonably request.
(e) Prior to the earlier of consummation of the Exchange Offer or the effectiveness of a Shelf Registration Statement if, in the reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of its affiliates (as such term is defined in the rules and regulations under the Act) are required to deliver an offering memorandum in connection with sales of, or market-making activities with respect to, the Securities or the Notes, (A) to periodically amend or supplement the Offering Memorandum so that the information contained in the Offering Memorandum complies with the requirements of Rule 144A of the Act, (B) to amend or supplement the Offering Memorandum when necessary to reflect any material changes in the information provided therein so that the Offering Memorandum 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 light of the circumstances existing as of the date the Offering Memorandum are so delivered, not misleading and (C) to provide the Initial Purchaser with copies of each such amended or supplemented Offering Memorandum, as the Initial Purchaser may reasonably request. Following the consummation of the Exchange Offer or the effectiveness of a Shelf Registration Statement and for so long as the Notes are outstanding if, in the reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of its affiliates (as such term is defined in the rules and regulations under the Act) are required to deliver a prospectus in connection with sales of, or market-making activities with respect to, the Notes, (A) to periodically amend the applicable registration statement so that the information contained therein complies with the requirements of Section 10(a) of the Act, (B) to amend the applicable registration statement or supplement the related prospectus or the documents incorporated therein when necessary to reflect any material changes in the information provided therein so that the registration statement and the prospectus 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 when the Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, promptly to prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements therein existing as so amended or supplemented will not, in the light of the circumstances when date the Offering Memorandum prospectus is so delivered, be misleadingnot misleading and (C) to provide the Initial Purchaser with copies of each amendment or supplement filed and such other documents as the Initial Purchaser may reasonably request. The Selling Securityholders, Holdings, and GSFI, Inc., a Delaware corporation and wholly owned Subsidiary of Holdings (the "COMPANY"), hereby expressly acknowledge that the indemnification and contribution provisions of Section 9 hereof are specifically applicable and relate to each offering document, registration statement, prospectus, amendment or so the Offering Memorandum will comply with applicable lawsupplement referred to in this Section 5(e).
(ef) To (i) cooperate with you the Initial Purchaser and your counsel for the Initial Purchaser in connection with the qualification of the Securities for offer and sale by the Initial Purchaser under the state securities or Blue Sky laws of such jurisdictions in as the United States as you Initial Purchaser may request and to request, (ii) continue such qualification in effect so long as required for the Exempt Resales of the Securities and Agent Sales(iii) file such consents to service of process or other documents as may be necessary in order to effect such qualification; provided, however provided that in no event shall Holdings shall not be required obligated to qualify to do business in connection therewith to register or qualify as a foreign corporation any jurisdiction where it is not now so qualified qualified, or to take any action that which would subject it to the general service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales and Agent Sales, in any jurisdiction where it is not now so subject. Holdings will continue such qualification in effect so long as required by law for distribution of the Securities.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the preparation, printing, processing, distribution and delivery of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), (ii) the preparation (including, without limitation, word processing and duplication costs) printing, processing, distribution and delivery of this Agreement and the other Operative Documents (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by Holdings of the Securities, (iv) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of your counsel relating to such registration or qualification not to exceed $7,500), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of Holdings' counsel and accountants, (viii) the fees and expenses of the Trustee and its counsel under the Exchange Debenture Indenture, (ix) all expenses and listing fees in connection with the application for designation of the Senior Preferred Stock in the National Association of Securities Dealers, Inc. ("NASD") Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") market, (x) all fees and expenses (including fees and expenses of counsel) of Holdings in connection with the approval of the Securities by DTC for "book-entry" transfer, (xi) any fees charged by rating agencies for rating the Securities, (xii) all "road show" and other marketing expenses related to the preparation of slides, videotapes and printed marketing materials, and travel, hotel, food and entertainment expenses of affiliates of Holdings and (xiii) the performance by Holdings of its other obligations under this Agreement and the other Operative Documents.
(g) So long as any of the Securities or the Notes are outstanding, to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and, during the period of three years following the date of this Agreement, to deliver to the Initial Purchaser, promptly upon their becoming available, (i) copies of all current, regular and periodic reports filed by Holdings and the Company with any securities exchange or with the Commission or any governmental authority succeeding to any of the Commission's functions, and (ii) copies of each report or other publicly available information of Holdings and the Company mailed to the holders of the Securities or Notes, as applicable, and such other publicly available information concerning Holdings and its subsidiaries as the Initial Purchaser may request.
(h) To use the proceeds from the sale of the Units in the manner described specified in the Offering Memorandum Documents (and any amendments or supplements thereto) under the caption "Use of Proceeds."
(hi) Not to voluntarily claimclaim voluntarily, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(i) To do and perform all things required to be done and performed under this Agreement by them prior to the Securities or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Units that are within their controlNotes.
(j) Except as otherwise agreed to by the parties hereto, to pay all costs, expenses, fees and taxes incident to:
(1) the preparation, printing, filing and distribution under the Act of the Offering Documents (including financial statements and exhibits) and all amendments and supplements to any of them;
(2) the printing and delivery of the Operative Documents, the Securities, the Notes, the preliminary and supplemental Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection herewith and with the Exempt Resales (including in each case any disbursements of counsel to the Initial Purchaser relating to such printing and delivery);
(3) the issuance and delivery of the Securities and the Notes;
(4) the registration or qualification of the Securities and the Notes for offer and sale under the securities or Blue Sky laws of the several states (including in each case the fees and disbursements of counsel to the Initial Purchaser relating to such registration or qualification and memoranda relating thereto);
(5) furnishing such copies of the Offering Documents (including all documents incorporated by reference therein) and all amendments and supplements thereto as may be requested for use in connection with the Exempt Resales;
(6) the rating of the Securities and the Notes by rating agencies, if any;
(7) all expenses and listing fees in connection with the application for quotation of the Securities and the Notes in the National Association of Securities Dealers, Inc. Automated Quotation System - PORTAL ("PORTAL");
(8) all fees and expenses (including fees and expenses of counsel) of Holdings in connection with approval of the Securities and the Notes by DTC for "book-entry" transfer; and
(9) the performance by Holdings of its other obligations under this Agreement.
(k) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than a default by the Initial Purchaser) or if for any reason Holdings or the Selling Securityholders shall be unable or unwilling to perform their respective obligations hereunder, Holdings shall, except as otherwise agreed by the parties hereto, reimburse the Initial Purchaser for the fees and expenses to be paid or reimbursed pursuant to Section 5(j) above, and reimburse the Initial Purchaser for all reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel to the Initial Purchaser) incurred by the Initial Purchaser in connection with the transactions contemplated by this Agreement.
(l) Prior to the Closing Date, to furnish to the Initial Purchaser, as soon as they have been prepared by Holdings, a copy of any consolidated financial statements of Holdings for any period subsequent to the period covered by the financial statements appearing in the Offering Documents.
(m) Not to distribute prior to the Closing Date any offering material in connection with the offering and sale of the Units other than the Offering Documents.
(n) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities Units in a manner that would require the registration under the Securities Act of the sale to you the Initial Purchaser or the Eligible Purchasers of the SecuritiesUnits.
(ko) For so long as any of the Securities or the Notes remain outstanding and during any period in which Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available to any QIB Eligible Purchaser or beneficial owner of the Securities or the Notes in connection with any sale thereof and any prospective purchaser of such Securities or such Notes from such QIB Eligible Purchaser or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act.
(lp) To comply with its agreements in the Registration Rights Agreement, and all agreements set forth in the representation letters of Holdings to DTC relating to the approval of the Securities and the Notes by DTC for "book-entry" transfer.
(q) To cause the Registered Exchange Offer Offer, if available, to be made in the appropriate form form, as contemplated by the Registration Rights Agreement, to permit registration of the Series B Senior Preferred Stock Notes to be offered in exchange for the Series A Senior Preferred Stock Notes and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(mr) To use their its best efforts to effect the inclusion of the Senior Preferred Stock Securities and the Notes in PORTAL.
(ns) During a period of five years following the date of To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement, to deliver to you promptly upon their becoming available, copies of all current, regular and periodic reports filed Agreement by Holdings or Anvil with prior to the Commission or any securities exchange or with any governmental authority succeeding Closing Date and to any satisfy all conditions precedent to the delivery of the Commission's functions and such other publicly available information concerning Holdings and Anvil as the Initial Purchaser shall reasonably requestUnits.
(ot) Not toDuring the period beginning from the date hereof and continuing to and including the date that is 180 days after the Closing Date, and not to use its reasonable best efforts to cause its affiliates not to, offer, sell, contract to sell or grant otherwise dispose of, except as provided hereunder, any option to purchase or otherwise transfer or dispose securities of any preferred stock or debt security issued or guaranteed by Holdings or Anvil (other than (i) the Units, the Senior Preferred Stock and the Class B Common comprising the Units, (ii) the Series A Senior Notes, (iii) the Series B Senior Notes, (iv) the Series B Senior Preferred Stock and (v) the Exchange Debentures issuable pursuant that are substantially similar to the terms of Units or the Senior Preferred Stock), or Notes including but not limited to any security securities (other than the Units) that are convertible into or exchangeable for, or exercisable for that represent the right to receive, Units or Notes or any such preferred substantially similar securities (other than pursuant to employee stock option plans existing on, or debt securityupon the conversion or exchange of convertible or exchangeable securities outstanding as of, for a period the date of 90 days after the Closing Datethis Agreement), without your the prior written consentconsent of the Initial Purchaser.
(pu) Prior Not to cause any advertisement of the Units to be published in any newspaper or concurrently with periodical or posted in any public place and not to issue any circular relating to the ClosingUnits, except such advertisements that include the statements required by Regulation S.
(v) If Holdings elects to exchange the Units for the Notes, to enter into the Registration Rights Agreement in substantially the form attached hereto as Exhibit A in order to permit registration of the Series B Senior Preferred Stock to be offered in exchange for the Series A Senior Preferred Stock as contemplated thereby and/or the shelf registration of the Senior Preferred Stock.
(q) To comply with all agreements set forth applicable federal and state securities laws in the representation letter of Holdings to DTC relating to the approval of the Units by DTC for "book-entry" transferconnection with such exchange.
(r) During the two year period following the Closing Date, neither Holdings nor Anvil will, nor will they permit any of their affiliates (as defined for the purposes of Rule 144 under the Securities Act) to, resell any of the Units that may be acquired by any of them other than such Units as may be acquired by affiliates on the Closing Date.
(s) To cause the Certificate of Designation to be filed with the appropriate authorities prior to the Closing Date.
Appears in 1 contract
