Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows: (a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request. (b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering. (c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes. (d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof. (e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission. (f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject. (g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers. (h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.” (i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes. (j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC. (k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act. (l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes. (m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S. (n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer. (o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 3 contracts
Samples: Purchase Agreement (Platform Specialty Products Corp), Purchase Agreement (Platform Specialty Products Corp), Purchase Agreement
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers Eligible Purchasers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any applicable law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 120th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeRepresentatives, on behalf of the Initial Purchasers, except the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer and the filing of any registration statement required to be filed by the Registration Rights Agreement.
(h) If at any time there are Notes outstanding and the Company is not subject to Section 13 or 15(d) of the Exchange Act, then the Company and the Guarantors will furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) in order to permit compliance with Rule 144A in connection with resales of the Notes by the Initial Purchasers or such holders.
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the . The Company and the Guarantors will not engagetake reasonable precautions designed to insure that any offer or sale, and will cause their respective affiliates and any person acting on their behalf (other thandirect or indirect, in the United States or to any caseU.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers Purchasers), is made under restrictions and any of their affiliates, as to whom the Company and the Guarantors make no covenant) other circumstances reasonably designed not to engage (i) affect the status of the offer and sale of the Notes in any form of general solicitation or general advertising (within the meaning of Regulation D United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act) , including any sales pursuant to Rule 144A under, or any public offering within the meaning of Section 4(a)(2) of Regulations D or S of, the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.Act.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 2 contracts
Samples: Purchase Agreement (Gentiva Health Services Inc), Purchase Agreement (Gentiva Health Services Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one not later than the second business day of following the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object in a timely manner after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Subject to the proviso in Section 5(f), the Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except any offer or sale of Notes, Exchange Notes, Guarantees or Exchange Guarantees pursuant to the Registration Rights Agreement, and any filings with the SEC related thereto.
(h) So long as any of the Notes are outstanding and the Company and the Guarantors are so required pursuant to the Indenture, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their all commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the second anniversary of Securities Act) from the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except (i) for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold that are sold in a transaction registered under the Securities Act or (ii) in the opinion of counsel, the buyer of such Notes is not acquiring “restricted securities” under Rule 144 under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the . The Company and the Guarantors will not engagetake reasonable precautions designed to insure that any offer or sale, and will cause their respective affiliates and any person acting on their behalf (other thandirect or indirect, in the United States or to any caseU.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers Purchasers), is made under restrictions and any of their affiliates, as to whom the Company and the Guarantors make no covenant) other circumstances reasonably designed not to engage (i) affect the status of the offer and sale of the Notes in any form of general solicitation or general advertising (within the meaning of Regulation D United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act) , including any sales pursuant to Rule 144A under, or any public offering within the meaning of Section 4(a)(2) of Regulations D or S of, the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.Act.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 2 contracts
Samples: Purchase Agreement (Hillman Companies Inc), Purchase Agreement (Hillman Companies Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, Guarantors (upon becoming parties hereto) agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended Memorandum and any amendments or supplemented supplements thereto as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum without the prior consent of which the Initial Purchasers shall Purchasers, which consent will not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringbe unreasonably withheld.
(c) Prior to the execution and delivery of this Agreement, the Company will have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each consents to the use, in accordance with the securities or Blue Sky laws of the Guarantors jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, that in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, Memorandum does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the The Company will give notice thereof to cooperate with the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith (i) the Company or shall in no event be required to continue in effect any such qualification for a period of more than 180 days after the Guarantors shall Closing Date, (ii) the Company will not be required to (i) qualify as a foreign corporations in any jurisdiction in which they would not otherwise be required corporation or to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or state and (iii) the Company will not be required to subject themselves itself to taxation (other than any nominal amount) in any such jurisdiction in which they would if not otherwise be so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, each of the Company or any of its Subsidiaries agrees not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities issued or guaranteed by any of the Company or its Subsidiaries, except (i) in exchange for the Exchange Notes in connection with the Exchange Offer or (ii) with the prior consent of Lxxxxx Brothers Inc. and J.X. Xxxxxx Securites Inc.
(g) So long as any of the Notes are outstanding, the Company will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(h) If this Agreement terminates or is terminated after execution and delivery pursuant to any provisions hereof or if this Agreement is terminated by the Initial Purchasers because of any failure or refusal on the part of the Company or any of the Guarantors, as applicable, to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of their counsel) reasonably incurred by it in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks Guarantors for loss of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise. Notwithstanding the foregoing, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors shall not be required to reimburse the Initial Purchasers if this Agreement is terminated as a result of the conditions in Section 7(n) hereof not being satisfied.
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds”.”
(ij) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, each of the Guarantors and their respective affiliates Company or any of its Subsidiaries has not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, each of the Company or the Guarantors any of its Subsidiaries will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially best reasonable efforts to permit the Notes to be designated Portal MarketSM (“PORTAL”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of From and after the Closing Date, so long as any of the Notes are outstanding and are “restricted securities” within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the Guarantors information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) During the period of two years after the Closing Date or until such earlier time when all the Notes are registered under the Act, the Company will not, and will not permit any of their respective affiliates its “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Each of the Company and the Guarantors agree any of its Subsidiaries agrees 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mo) In connection with any offer or sale the offering of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, until the Initial Purchasers and any of their affiliates, as to whom shall have notified the Company of the completion of the resale of the Notes, to not, and to use its reasonable best efforts to cause its controlled affiliates not to, either alone or with one or more other persons, offer or sell the Guarantors make no covenant) not to engage Notes in the United States (i) in by means of any form of general solicitation or general advertising (within the meaning of Regulation D Rule 502(c) under the Act or (ii) with respect to any such securities sold in reliance on Rule 903 under the Act, by means of the Securities Act) or any public offering directed selling effort within the meaning of Section 4(a)(2) Rule 902 or otherwise in violation of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning offering restriction requirements of Regulation S, and to comply with S under the offering restrictions requirement of Regulation S.Act.
(np) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Each of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors Guarantors, as applicable, will do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
(q) None of the Company or any of the Guarantors will become an “investment company” or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(r) On the Closing Date, the Company will cause the Initial Purchasers to receive one or more counterparts of this Agreement in the form attached as Exhibit A hereto executed and delivered by duly authorized officers of each of the Guarantors.
(s) On the Closing Date, the Company will deliver to the Initial Purchasers secretary’s certificates reasonably satisfactory to the Initial Purchasers which will include the following documents with respect to the Company and each Guarantor: (i) charter, (ii) by-laws, (iii) resolutions and (iv) certificates of good standing and/or qualification to do business as a foreign corporation in such jurisdiction as the Initial Purchasers may reasonably request.
(t) On the Closing Date, the Company will cause the Initial Purchasers to receive a copy of the opinions delivered in connection with the Credit Agreement.
(u) On the Closing Date, the Company will cause the Initial Purchasers, to receive the Registration Rights Agreement executed and delivered by duly authorized officers of the Company and each Guarantor.
Appears in 2 contracts
Samples: Purchase Agreement (Chefford Master Manufacturing Co Inc), Purchase Agreement (UCI Holdco, Inc.)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and and, until the completion of the distribution of the Notes (including the distribution of any Additional Notes to the extent the Initial Purchasers exercise their option to purchase any Additional Notes pursuant to Section 3(b)) by the Initial Purchasers, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised advised; provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes and the offering or conversion thereof; provided further, however, that the offeringCompany shall advise the Initial Purchasers in advance of the filing of any such Annual Report, Quarterly Report or Current Report.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously promptly furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes and the Underlying Common Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the NotesNotes and the Underlying Common Stock; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities shares of the Company substantially similar to the Notes Common Stock or securities convertible into or exchangeable for such debt securities shares of Common Stock (other than the Companyshares of Common Stock issued pursuant to employee benefit plans, as applicablequalified stock option plans, other employee compensation plans or non-employee director compensation programs (collectively, “Compensation Plans”) existing on the date hereof and disclosed in the Pricing Disclosure Package or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to such debt securities any shares of the Company Common Stock or securities convertible into or exchangeable for such debt securities shares of Common Stock (other than (1) the issuance of the Notes to be sold hereunder, (2) the issuance of shares of Common Stock upon conversion of the Notes, if applicable, (3) the grant of options and other equity awards pursuant to Compensation Plans existing on the date hereof and disclosed in the Pricing Disclosure Package or the Offering Memorandum or (4) shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock issued by the Company as consideration for any merger or acquisition made by the Company or any of its subsidiaries; provided, however, that the aggregate number of shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock (on an as-converted or as-exercised basis, as the case may be) that the Company may sell or issue or agree to sell or issue pursuant to this clause (4) shall not exceed 5% of the total number of shares of the Company’s Common Stock issued and outstanding immediately following the completion of the transactions contemplated herein; and provided further, that any recipients of such Common Stock or securities convertible into or exchangeable for shares of Common Stock pursuant to this clause (4) shall execute a lock-up agreement substantially in the form of Exhibit B hereto), (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities shares of the CompanyCommon Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes Common Stock or securities convertible, exercisable or exchangeable into debt securities of the Company Common Stock (other than any registration statement on Form S-8), or (iv) publicly announce an offering of disclose the intention to do any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesforegoing, in each case without the prior written consent of the RepresentativeBarclays Capital Inc. and X.X. Xxxxxx Securities LLC, on behalf of the Initial Purchasers, and to cause each officer and director of the Company set forth on Schedule VI hereto to furnish to the Representatives, prior to the date of this Agreement, a letter or letters, substantially in the applicable form attached hereto as Exhibit B hereto (the “Lock-Up Agreements”).
(h) Between the date hereof and the Closing Date (both dates included), neither the Company nor the Guarantors will do any act or thing which, had the Firm Notes then been in issue, would result in an adjustment to the conversion price of the Firm Notes.
(i) For so long as any of the Notes or the Underlying Common Stock are outstanding, and unless otherwise available on the Commission’s Electronic Data Gathering and Retrieval System, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes or the Underlying Common Stock and prospective purchasers of the Notes or the Underlying Common Stock the information required by Rule 144A(d)(4) under the Securities Act (if any).
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply in all material respects with all terms and conditions of the agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will use their commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
(q) The Company agrees to reserve and keep available at all times, free of preemptive rights, a sufficient number of Underlying Common Stock to enable the Company to satisfy any obligations to issue Underlying Common Stock upon conversion of the Notes.
(r) Between the date hereof and the Closing Date, the Company will not do or authorize any act that would result in an adjustment of the conversion rate of the Notes.
(s) The Company agrees to use its commercially reasonable efforts to list, subject to notice of issuance, the Underlying Common Stock issuable upon conversion of the Notes on the New York Stock Exchange, and to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a register for the Underlying Common Stock.
Appears in 2 contracts
Samples: Purchase Agreement (Jarden Corp), Purchase Agreement (Jarden Corp)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one two business day days of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object in a timely manner after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Subject to the proviso in Section 5(f), the Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will will, subject to Section 5(b) hereof, forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of Neither the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly The Company and the Guarantors will, promptly from time to time to time, take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicableCompany or any Guarantor, or sell or grant options, rights or warrants with respect to such debt securities of the Company or any Guarantor or securities convertible into or exchangeable for such debt securities of the Company or any Guarantor, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the CompanyCompany or any Guarantor, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or any Guarantor or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or any Guarantor, or (iv) publicly announce an offering of any debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except in respect of the exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer and the offer or sale of Notes or Guarantees in connection with the filing of any registration statement required to be filed , in each case, pursuant to the Registration Rights Agreement and any filings with the Commission related thereto.
(h) If at any time there are Notes outstanding and the Parent Guarantor or the Company are so required pursuant to the Indenture, then the Company and the Guarantors will furnish at their expense to the Initial Purchasers and, upon request, to holders and beneficial owners of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) in order to permit compliance with Rule 144A in connection with resales of the Notes by the Initial Purchasers, such holders or such beneficial owners.
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it them hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the second anniversary of Securities Act) from the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold that are sold in a transaction registered under the Securities Act.
(lm) The Company will not and will not permit any of its affiliates or any other person acting on its behalf (other than the Initial Purchasers and their respective affiliates, as to which no covenant is given) to (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts with respect to the Notes within the meaning of Regulation S, and the Company will and will cause all such persons to comply with the offering restrictions requirement of Regulation S with respect to the Notes.
(n) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the . The Company and the Guarantors will not engagetake reasonable precautions designed to insure that any offer or sale, and will cause their respective affiliates and any person acting on their behalf (other thandirect or indirect, in the United States or to any caseU.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers Purchasers), is made under restrictions and any of their affiliates, as to whom the Company and the Guarantors make no covenant) other circumstances reasonably designed not to engage (i) affect the status of the offer and sale of the Notes in any form of general solicitation or general advertising (within the meaning of Regulation D United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act) , including any sales pursuant to Rule 144A under, or any public offering within the meaning of Section 4(a)(2) of Regulations D or S of, the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.Act.
(no) The Company and the Guarantors agree to (i) use commercially reasonable efforts to comply with all the terms and conditions of the Registration Rights Agreement and (ii) comply with all agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Securities for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Securities under any state securities or Blue Sky laws and, without chargeif 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 Securities under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Securities are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the Notes sale of all Securities pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Securities for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales in any jurisdiction in which it is not now so subject.
(f) So long as any Securities are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as any Securities are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders in their capacities as foreign corporations in such or publicly available documents furnished to or filed with the Commission or any jurisdiction in national securities exchange on which they would not otherwise be required to so qualify, (ii) file a general consent to service any class of process in securities of the Company or any of the Guarantors is listed and such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectother publicly available information concerning the Company and/or its subsidiaries as the Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Securities remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "EXCHANGE ACT"), to make available to any holder of such Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
(m) In connection with Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any offer or sale of the Notesforegoing (including financial statements), including the Company mailing and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, delivering of copies thereof to the Initial Purchasers and any of their affiliatespersons designated by it in the quantities specified herein, as (ii) all costs and expenses related to whom the Company transfer and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D delivery of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder Purchasers and pursuant to purchase the Notes.Exempt Resales, including
Appears in 1 contract
Samples: Purchase Agreement (Horizon Personal Communications Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, Purchasers without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they it may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Offering Memorandum, or file any Exchange Act Reports after the date hereof and prior to the Offering Circular Closing Date, of which the Initial Purchasers shall not previously have been advised or, with respect to any such amendment or supplement to the Offering Memorandum, to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs shall occur or information becomes known that, that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will will, subject to subsection (b) above, forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in which they where it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, the Guarantors or any of their respective subsidiaries, except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer or (ii) with the prior consent of the Representatives.
(g) So long as applicablethe Notes are outstanding, or sell or grant optionsunless such documents are available to the Initial Purchasers via the Commission's website, rights or warrants EDGAR, to furnish to the holders of the Notes as soon as practicable xxxxx the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with respect the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such debt securities quarter in reasonable detail.
(h) So long as any of the Notes are outstanding, unless such documents are available to the Initial Purchasers via the Commission's website, EDGAR, the Company and the Guarantors will furnish to the Initial Purxxxxxrs (i) as soon as reasonably available, a copy of each report of the Company or securities convertible into any Guarantor mailed to stockholders generally or exchangeable for such debt securities of the Company filed with any stock exchange or regulatory body and (ii) enter into any swap from time to time such other information concerning the Company or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of Guarantors as the Company, whether any such transaction described in clause Initial Purchasers may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (iiotherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) above is to or if this Agreement shall be settled terminated by delivery the Initial Purchasers because of debt securities of any failure or refusal on the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities part of the Company or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree to reimburse the Initial Purchasers for all out-of-pocket expenses (ivincluding reasonable fees and expenses of its counsel) publicly announce an offering of reasonably incurred by it in connection herewith, but without any debt securities further obligation on the part of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent any of the Representative, on behalf Guarantors for loss of the Initial Purchasersprofits or otherwise.
(hj) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ik) The CompanyExcept as stated in this Agreement and in the Offering Memorandum, neither the Guarantors and their respective affiliates Company nor any of its subsidiaries has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Securities Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jl) The Company and the Guarantors will use their all commercially reasonable efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) Market(SM) (the "PORTAL Market(SM)") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market(SM) and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until From and after the second anniversary Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(n) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(o) During the period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes that constitute "restricted securities" under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lp) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(nq) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement in all material respects and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(or) On the Closing Date, the Company will deliver to the Initial Purchasers secretary's certificates reasonably satisfactory to the Initial Purchasers which will include the following documents with respect to the Company and each Guarantor: (i) charter, (ii) by-laws, (iii) other constitutive documents, (iv) resolutions and (v) certificates of good standing and/or qualification to do business as a foreign corporation in such jurisdiction as the Initial Purchasers may reasonably request.
(s) The Company and the Guarantors agree to cause the Exchange Offer to be made on the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Exchange Notes and the Exchange Guarantees to be offered in exchange for the Notes and the Guarantees, respectively, and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(t) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(u) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(v) The Company and the Guarantors will do and perform all things reasonably required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
(w) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the --------------------------------------------- Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, 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 Senior Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose, and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and shall use its best efforts to prevent the Guarantors will furnish issuance of any stop order or order suspending the qualification or exemption of any Senior Notes under any state securities or Blue Sky laws 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 Senior Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the Initial Purchasers, without charge, within one business day withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchaser and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers Purchaser to the Company as many copies of the Preliminary Offering Memorandum and will the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchaser an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser and in connection with market-making activities of the Initial Purchaser, for so long as any Senior Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they the Initial Purchaser shall reasonably object after being so advised providedand (ii) to prepare promptly, that this clause shall not apply to upon the Initial Purchaser's reasonable request, any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through Purchaser and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct may designate such conflict, statement or omissionnumber of copies thereof as the Initial Purchaser may reasonably request.
(fe) Promptly from time Prior to time the sale of all Senior Notes pursuant to take such action Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers may reasonably request Purchaser and counsel to qualify the Initial Purchaser in connection with the registration or qualification of the Senior Notes for offering offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with continue such laws qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, furnish to the Trustee for provision to the Holders of Senior Notes (i) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the financial condition and results of operations of the Company and its consolidated Subsidiaries (showing in reasonable detail, either on the face of the financial statements or in the footnotes thereto and in Management's Discussion and Analysis of Financial Condition and Results of Operations, the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company) and, with respect to the annual information only, a report thereon by the Company's certified independent accountants and (ii) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders in their capacity as foreign corporations in such or furnished to or filed with the Commission or any jurisdiction in national securities exchange on which they would not otherwise be required to so qualify, (ii) file a general consent to service any class of process in securities of the Company or any of the Guarantors is listed and such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectother publicly available information concerning the Company and/or its subsidiaries as the Initial Purchaser may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Senior Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Senior Notes in connection ------------ with any sale thereof, and any prospective purchaser of such Senior Notes from such holder, the information ("Rule 144A Information") required by Rule --------------------- 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Senior Notes to the Initial Purchaser and pursuant to Exempt Resales, and all other fees or expenses in connection with the preparation, printing, filing 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) and 5(c) prior to or during the period specified in Section 5(c), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Senior Notes to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Senior Notes, (iv) all expenses in connection with the registration or qualification of the Senior Notes and the Subsidiary Guarantees 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 and fees and disbursements of counsel for the Initial Purchaser in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Senior Notes and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Senior Notes 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, the Notes and the Subsidiary Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section.
(j) The Company and the Guarantors will To use their commercially reasonable its best efforts to permit effect the inclusion of the Senior Notes in PORTAL and to be eligible maintain the listing of the Senior Notes on PORTAL for clearance and settlement through DTCso long as the Senior Notes are outstanding.
(k) Until To obtain the second anniversary approval of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except DTC for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers "book-entry" transfer of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement all of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Senior Notes and the Subsidiary Guarantees (other than the Senior Notes and the Subsidiary Guarantees), without the prior written consent of the Initial Purchaser.
(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 Senior Notes to the Initial Purchaser or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Senior Notes 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 Senior Notes.
(o) The Company To cause the Exchange Offer to be made in the appropriate form to permit Exchange Notes and guarantees thereof by the Guarantors registered pursuant to the Act to be offered in exchange for the Senior Notes and the Guarantors will Subsidiary Guarantees and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in the Registration Rights Agreement.
(q) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the NotesSenior Notes and the Subsidiary Guarantees.
Appears in 1 contract
Samples: Purchase Agreement (Wilsons the Leather Experts Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv3) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeX.X. Xxxxxx Securities Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or the Guarantors as the Initial Purchasers may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceedsproceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated as Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the “PORTAL MarketSM”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(q) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(r) None of the Company or any of its affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchaser's reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis, all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (mincluding financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, (but excluding any legal fees and expenses of Initial Purchasers' counsel incurred by such counsel in connection therewith) In (ii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any offer preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Initial Purchasers, not to exceed $10,000 in connection with such registration or sale qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes 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, the Notes and the Subsidiary Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Company and the Guarantors will not engage, and will cause their respective affiliates Exchange Offer and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliatesRegistration Statement, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Registration Rights Agreement, (xi) all fees and expenses in connection with the Escrow Agreement and Escrow Account, and (xii) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC hereunder for “book entry” transferwhich provision is not otherwise made in this Section.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, Guarantors hereby agree with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering CircularMemorandum untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein, such number of copies in light of the Offering Circular as may then be amended circumstances under which they were made, not misleading. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or supplemented as they may reasonably requestorder suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws 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 Series A Notes under any state securities or Blue Sky laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). The Company and consents to the Guarantors will prepare use of the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) subject to Section 5(d) below, not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object in writing within a reasonable time after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers’ reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith promptly to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) To cooperate with the Initial Purchasers and counsel to qualify the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale by the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete the distribution of the Noteseffect such registration or qualification; provided provided, however, that in connection therewith the Company or any of the Guarantors shall not be required in connection therewith to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating solely to the Offering Memorandum or Exempt Resales, or (iii) subject themselves to taxation in any jurisdiction in which they would it is not otherwise be now so subject.
(f) From and after the Closing Date, for so long as any of the Notes remain outstanding and are restricted securities within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Company 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 holder of the Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder, the information (“Rule 144A Information”) required by Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
(g) For a period commencing on Whether or not the date hereof transactions contemplated in this Agreement are consummated or this Agreement becomes effective or is terminated, to pay or cause to be paid all costs, expenses, fees and ending on taxes incident to or in connection with this Agreement, including: (i) the 60th day after the date fees, disbursements and expenses of the Offering Circular, counsel to the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities and accountants of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering sale and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Series B notes 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 and reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto, (v) the cost of printing certificates representing the Series A Notes, (vi) all expenses and listing fees in connection with the application for quotation of the Notes on the PortalSM Market (“PORTAL”), (vii) the fees and expenses of the Trustee and the Trustee’s counsel in connection with the Indenture and the Notes, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes.
, (jx) The all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement and (xi) all other costs and expenses of the Company and the Guarantors will incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section.
(h) To use their commercially reasonable best efforts to permit the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL.
(i) To obtain the approval of DTC for “book-entry” transfer of the Notes, and to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for “book-entry” transfer and to permit the Notes to be eligible for clearance and settlement through DTC.
(kj) Until During the second anniversary of 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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes (other than (i) the Notes and the Guarantors will notGuarantees and (ii) commercial paper issued in the ordinary course of business), and will not permit any of their respective affiliates (as defined in Rule 144 under without the Securities Act) to, resell any prior written consent of the Notes Initial Purchasers.
(k) Prior to the Closing Date, to furnish to the Initial Purchasers as soon as they have been prepared, any internal combined financial statements of the Company that have been acquired by any of them, except for Notes purchased prepared by the Company, Company for any period subsequent to the Guarantors or any of their respective affiliates and resold period covered by the financial statements appearing in a transaction registered under the Securities ActOffering Memorandum.
(l) The Company and the Guarantors agree not 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 Series A Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series A Notes under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesAct.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as Not to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation Svoluntarily claim, and to comply with actively resist any attempts to claim, the offering restrictions requirement benefit of Regulation S.any usury laws against the holders of any Notes and the Guarantees.
(n) The Company and the Guarantors agree To use commercially reasonable best efforts to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations delivery of the Series A Notes and the Guarantees.
(o) To apply the net proceeds from the sale of the Notes to be sold by it hereunder to purchase substantially in accordance with the Notesdescription set forth in the Offering Memorandum under the caption “Use of Proceeds.”
Appears in 1 contract
Samples: Purchase Agreement (Broder Bros Co)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial PurchasersPurchaser, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they it may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not (i) make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall or (ii) include additional disclosure of a type not apply to any filing by described in Schedule II without the Company consent of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringInitial Purchaser.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers Purchaser and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers Purchaser to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers Purchaser and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeInitial Purchaser, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Purchaser and, if requested by the RepresentativeInitial Purchaser, will prepare and furnish without charge to each the Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers Purchaser may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv3) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeInitial Purchaser, on behalf of except in exchange for the Initial PurchasersExchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchaser (i) as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or the Guarantors as the Initial Purchaser may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated as Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the “PORTAL MarketSM”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(q) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by the Initial Purchaser of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(r) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ Purchaser’s obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers you as follows:
(a) The Company and the Guarantors will furnish to the Initial PurchasersTo advise you promptly and, without chargeif requested by you, within one business day confirm such advice in writing, (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Series B Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by the Commission or any state securities commission or other regulatory authority and (ii) of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company happening of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in event which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at makes any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary made in the Offering Memorandum untrue or which 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 were made, not misleading. The Company and the Guarantors shall use their reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Series B Notes under any state securities or Blue Sky laws, and, if at any time any state securities commission issues an order suspending the qualification or exemption of the Series B Notes, the Company and the Guarantors shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you without charge as many copies of the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. The Company and the Guarantors consent to the use of the Offering Memorandum, and any amendments and supplements thereto, required pursuant to this Agreement by you in connection with the Exempt Resales.
(c) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless you shall previously have been advised of, and shall not have reasonably objected to, such amendment or supplement within a reasonable time, but in any event not longer than five business days after being furnished a copy of such amendment or supplement. The Company and the Guarantors shall promptly prepare, upon any reasonable request by you, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(d) If, in connection with any Exempt Resales or market making transactions after the date of this Agreement and prior to the consummation of the Registered Exchange Offer, any event shall occur that, in the judgment of the Company and the Guarantors or in the judgment of counsel to you, makes any statement of a material fact 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 in the Offering Memorandum, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any lawall applicable laws, the Company and the Guarantors will forthwith shall promptly notify you of such event and prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
Offering Memorandum so that (ei) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information statements in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum as amended or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements thereinsupplemented will, in the light of the circumstances then prevailingat the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleadingbe misleading and (ii) the Offering Memorandum will comply with applicable law.
(e) To cooperate with you and your counsel in connection with the qualification of the Series B Notes for offer and sale by you and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, as promptly as practicable after becoming aware thereofhowever, that neither the Company nor any Guarantor shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject). The Company and the Guarantors will give notice thereof continue such qualification in effect so long as required by law for distribution of the Series B Notes and will file such consents to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document service of process or other document which will correct documents as may be necessary in order to effect such conflict, statement or omissionqualification.
(f) Promptly from time Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to time pay all costs, expenses, fees and taxes incident to take such action as and in connection with: (i) the Initial Purchasers may reasonably request to qualify preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto, (ii) the preparation, printing (including, without limitation, word processing and duplication costs) and delivery of this Agreement, the Indenture, the Registration Rights Agreement, all preliminary and final Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by the Company and the Guarantors of the Notes and the Note Guarantees, (iv) the qualification of the Notes and the Note Guarantees for offering 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 jurisdictions as registration or qualification), (v) furnishing such copies of the Initial Purchasers may request Preliminary Offering Memorandum and to comply with such laws so as to permit the continuance of sales Offering Memorandum, and dealings therein in such jurisdictions for as long all amendments and supplements thereto, as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer reasonably requested for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors use in connection with the offering Exempt Resales, (vi) the preparation of certificates for the Notes and the Note Guarantees (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Notes.
(j) The Company Company's and the Guarantors will use their commercially reasonable efforts to permit Guarantors' counsel and accountants, (viii) all expenses and listing fees in connection with the Notes to be eligible application for clearance and settlement through DTC.
(k) Until the second anniversary quotation of the Closing DateSeries B Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (ix) the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any rating of the Notes that have been acquired by any rating agencies, if any, (x) all fees and expenses (including fees and expenses of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lcounsel) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the in connection with approval of the Notes by DTC for “book "book-entry” transfer.
" transfer and (oxii) The the performance by the Company and the Guarantors will do and perform all things required or necessary to be done and performed of their other obligations under this Agreement by them prior and the other Operative Documents to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Noteswhich they are a party.
Appears in 1 contract
Samples: Purchase Agreement (Norwich Injection Moulders LTD)
Agreements of the Company and the Guarantors. The Company and each the Guarantors (in the case of the Additional Guarantors, upon execution of the Joinder Agreement), jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company substantially similar to the Notes, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securitiessecurities substantially similar to the Notes, in each case without the prior written consent of the RepresentativeXxxxx Fargo Securities, LLC, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) Upon request, so long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers and to the holders of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree not will take precautions designed to sellinsure that any offer or sale, offer for sale direct or solicit offers indirect, in the United States or to buy or otherwise negotiate in respect of any security U.S. person (as defined in Rule 902 under the Securities Act) that would be integrated with ), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in a manner that would require the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration under provisions of the Securities Act of Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSecurities Act.
(mn) In connection with any offer or sale None of the Notes, the Company and or any of the Guarantors will not engage, and will cause their respective affiliates and or any other person acting on its or their behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Guarantors make which no covenantcovenant is given) not to engage will (i) in solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(24(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) engage in any directed selling effort with respect to the Notes efforts within the meaning of Regulation S, and to all such persons will comply with the offering restrictions requirement of Regulation S.
(no) Concurrent with the closing of the Williston Basin Acquisition, the Company and the Guarantors shall cause the Additional Guarantors to (i) execute and deliver the Joinder Agreement and the Registration Rights Joinder Agreement and (ii) execute and deliver supplemental indentures to the Indenture and/or take all necessary actions to become Guarantors under the Indenture.
(p) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(oq) The Company and the Guarantors will use their best efforts to (i) do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to (ii) satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, Guarantors jointly and severally, severally agree with each of the Initial Purchasers Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or other federal or state regulatory authority for such purpose and (ii) of the happening of any event during the period referred to in Section 5(c) hereof that makes any statement of a material fact made in the Preliminary Offering Circular or the Final Offering Circular untrue or that requires the making of any additions to or changes in the Preliminary Offering Circular or the Final Offering Circular in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasers, without charge, within one business day issuance of any stop order or order suspending the qualification or exemption of any of the date Series A Notes under any state securities or Blue Sky laws, 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 Series A Notes under any state securities or Blue Sky laws, the Offering Circular, Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such number of copies of order at the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchaser and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers and will not make any amendment or supplement Purchaser to the Pricing Disclosure Package Company as many copies of the Preliminary Offering Circular and the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. Subject to the Offering Circular of which Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package Preliminary Offering Circular and the Final Offering Circular, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchaser an Offering Circular is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser and in connection with market-making activities of the Initial Purchaser for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by Initial Purchaser shall not previously have been advised or to which the Initial Purchasers Purchaser shall reasonably object after being so advised and by all dealers (ii) to whom Notes prepare promptly upon the Initial Purchaser's reasonable request, any amendment or supplement to the Offering Circular which may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors Guarantor or in the opinion reasonable judgment of counsel for to the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Circular is delivered to an Eligible Purchaser, not misleading, or if if, in the reasonable judgment of counsel to the Initial Purchaser, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any applicable law, forthwith to notify the Company Initial Purchaser and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Circular will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through Purchaser and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct may designate such conflict, statement or omissionnumber of copies thereof as the Initial Purchaser may reasonably request.
(fe) Promptly from time Prior to time the sale of all Series A Notes pursuant to take such action Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers may reasonably request Purchaser and counsel to qualify the Initial Purchaser in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with continue such laws qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete the distribution of the Noteseffect such registration or qualification; provided provided, however, that in connection therewith the Company or any of the Guarantors shall not be required in connection therewith to (i) register or qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation, other than as to matters and transactions relating to the Preliminary Offering Circular, the Final Offering Circular or (iii) subject themselves to taxation Exempt Resales, in any jurisdiction in which they would it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will To apply the net proceeds from the sale of the Series A Notes to be sold by it hereunder substantially in accordance with the description as set forth under the caption "Use of Proceeds" in the Pricing Disclosure Package and the Offering Circular under and to comply with the caption “Use provisions of Proceedsthe Collateral Documents concerning disbursement of funds.”
(g) So long as any Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(h) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company and each of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of its Guarantors is listed and such other publicly available information concerning the Company and each of the Guarantors as the Initial Purchaser may reasonably request.
(i) The CompanySo long as any of the Series A Notes remain outstanding and during any period in which the Company 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 holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(j) 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 incident to the performance of the obligations of the Company and the Guarantors under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.Series A Notes and the Subsidiary Guarantees to the Initial Purchaser and pursuant to Exempt Resales, and all other fees or expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Circular, the Final Offering Circular and all amendments and supplements to any of the foregoing (including financial statements) specified in Section 5(c) and
(jd) The prior to or during the period specified in Section 5(c), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Series A Notes and the Subsidiary Guarantees to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes and the Subsidiary Guarantees, (iv) the performance by the Company and the Guarantors will use their commercially reasonable efforts to permit of its other obligations under this Agreement and the other Operative Documents, (v) all expenses in connection with the registration or qualification of the Series A Notes 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 and fees and disbursements of counsel for the Initial Purchaser in connection with such registration or qualification and memoranda relating thereto), (vi) the cost of printing certificates representing the Series A Notes and the Subsidiary Guarantees, (vii) all expenses and listing fees in connection with the application for quotation of the Series A Notes on the Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") system of the National Association of Securities Dealers, Inc. ("NASD"), (viii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary Guarantees, (ix) the costs and charges of any transfer agent, registrar 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, as set forth in the Registration Rights Agreement, (xii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Notes, (xiii) all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchaser (including, without limitation, the fees and disbursements of counsel for the Initial Purchaser up to be eligible $400,000 unless otherwise agreed to in writing by the Company, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures, subject in each case to receipt of appropriate supporting documentation) and (xiv) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for clearance and settlement through DTCwhich provision is not otherwise made in this Section.
(k) Until To use its reasonable best efforts to effect the second anniversary inclusion of the Closing Date, Series A Notes in PORTAL and to maintain the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any listing of the Series A Notes that have been acquired by on PORTAL for so long as any of them, except for Series A Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Actare outstanding.
(l) The Company and To obtain the Guarantors agree not to sell, offer approval of DTC 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers "book-entry" transfer of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(m) 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 the Company or any of the Guarantors or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any of the Guarantors substantially similar to the Notes (other than the Notes), without the prior written consent of the Initial Purchaser.
(n) 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 Series A Notes to the Initial Purchaser or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series A Notes under the Act.
(o) The Company To the extent it may lawfully do so, not to voluntarily claim, and to actively resist any attempts to claim, the Guarantors will benefit of any usury laws against the holders of any Notes.
(p) To cause the Exchange Offer to be made in the appropriate form to permit the Series B Notes registered pursuant to the Act to be offered in exchange for the Series A Notes and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(q) To comply with all of its agreements set forth in the Registration Rights Agreement.
(r) To use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the Series A Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv3) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) upon request and as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or the Guarantors as the Initial Purchasers may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceedsproceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(q) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(r) None of the Company or any of its affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree covenants and agrees with each of the Initial Purchasers as follows:
(a) The To advise the Initial Purchasers promptly and, if requested by the 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 Subordinated Notes 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) of the happening of any event that, in the reasonable opinion of either counsel to the Company and the Guarantors will furnish or counsel to the Initial Purchasers, without charge, within one business day makes any statement of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, material fact made in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular so Memorandum untrue or that requires the Pricing Disclosure Package making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. The Company and the Guarantors shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Subordinated Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or if it is necessary to supplement other regulatory authority shall issue an order suspending the qualification or amend the Pricing Disclosure Package exemption of any Subordinated Notes under any state securities or the Offering Circular in order to comply with any lawBlue Sky laws, the Company and the Guarantors will forthwith prepare an appropriate supplement shall use their best efforts to obtain the withdrawal or amendment thereto, and will expeditiously lifting of such order at the earliest possible time.
(b) To furnish to the Initial Purchasers and dealers a reasonable number those persons identified by the Initial Purchasers to the Company, without charge, as many copies of copies thereofthe Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and the Guarantors consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) None Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, upon the Initial Purchasers' reasonable 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.
(d) If, after the date hereof and prior to the consummation of any Exempt Resale, any event shall occur as a result of which, in the judgment of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circularreasonable opinion of counsel for the Company or counsel for the Initial Purchasers, the Pricing Disclosure Package it becomes necessary or advisable to amend or supplement the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances then prevailingwhen such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, as promptly as practicable after becoming aware thereofor if it is necessary or advisable to amend or supplement the Offering Memorandum to comply with applicable law, the Company will give notice thereof (i) to notify the Initial Purchasers through (who will thereafter not use such Offering Memorandum to confirm sales of the Representative andNotes until it is appropriately amended or supplemented) and (ii) to prepare promptly an appropriate amendment or supplement to such Offering Memorandum so that the statements therein as so amended or supplemented will not, if requested by in the Representativelight of the circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply with applicable law.
(fe) Promptly from time to time to take To cooperate with the Initial Purchasers and counsel for the Initial Purchasers in connection with the qualification or registration of the Subordinated Notes under the securities or Blue Sky laws of such action jurisdictions of the United States as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales; provided, however, that neither the Company nor any Guarantor shall 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 service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Offering Memorandum or Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company and the Guarantors hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the qualification or registration of the Notes for offering offer and sale under the securities or Blue Sky laws of such jurisdictions as the several states (including, without limitation, the preparation and delivery of all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales and the reasonable fees and disbursements of counsel for the Initial Purchasers may request relating thereto (provided that such fees and disbursements shall not exceed $10,000 in the aggregate)), (iii) the preparation, issuance, transfer and delivery by the Company of the Notes and the Guarantors of the Subsidiary Guarantees to comply with the Initial Purchasers, (iv) furnishing such laws so as to permit copies of the continuance of sales Preliminary Offering Memorandum and dealings therein in such jurisdictions for as long the Offering Memorandum, and all amendments and supplements thereto, as may be necessary to complete reasonably requested for use in connection with Exempt Resales, (v) the distribution fees, disbursements and expenses of the Notes; provided that Company's and Guarantors' counsel and accountants, (vi) all expenses and listing fees in connection therewith with the application for quotation of the Subordinated Notes in the National Association of Securities Dealers, Inc. ("NASD") Private Offering, Resales and Trading through Automated Linkages ("PORTAL") market, (vii) all fees and expenses (including fees and expenses of counsel to the Company) of the Company or any and the Guarantors in connection with the approval of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualifySubordinated Notes by DTC for "book-entry" transfer, (iiviii) file a general consent to service rating the Subordinated Notes by rating agencies, (ix) the reasonable fees and expenses of process the Trustee and its counsel, (x) the performance by the Company and the Guarantors of their other obligations under this Agreement and the other Operative Documents and (xi) "roadshow" travel and other reasonable expenses incurred in any such jurisdiction, or connection with the marketing and sale of the Notes (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectother than customary expenses paid for by the Initial Purchasers).
(g) For a period commencing on To use the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and manner described in the Offering Circular 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 Subordinated Notes.
(i) The Company, the Guarantors To do and their respective affiliates will not take, directly or indirectly, any action designed perform all things required to be done and performed under this Agreement by it prior to or that has constituted or that reasonably would be expected after the Closing Date and to cause or result in satisfy all conditions precedent on its part to the stabilization or manipulation delivery of the price of any security of the Company or the Guarantors in connection with the offering of the Subordinated Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesNotes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(k) For so long as any of the Subordinated Notes remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), upon request, to make available to any QIB or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of such Notes from such QIB or beneficial owner, the information required by Rule 144A(d)(4) under the Act.
(l) To cause the Exchange Offer to be made in the appropriate form to i permit registered New Notes to be offered in exchange for the Notes and to comply with all applicable federal and state securities laws in connection with the Exchange Offer, subject to the terms of the Registration Rights Agreement.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to To comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Subordinated Notes by DTC for “book "book-entry” " transfer.
(n) To use its best efforts to effect the inclusion of the Subordinated Notes in PORTAL and to obtain approval of the Notes by DTC for "book-entry" transfer.
(o) The For so long as any of the Subordinated Notes remain outstanding, to deliver without charge to the Initial Purchasers, as they may reasonably request, promptly upon their becoming available, copies of all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange, all publicly available information that the Company distributes to its public stockholders and such other publicly available information concerning the Guarantors will do and perform all things required Company or necessary to be done and performed under this Agreement by them prior its Subsidiaries, including without limitation, press releases.
(p) Prior to the Closing Date, and to satisfy all conditions precedent furnish to the Initial Purchasers’ obligations hereunder , as soon as they have been prepared in the ordinary course by the Company, copies of any unaudited interim financial statements for any period subsequent to purchase the periods covered by the financial statements appearing in the Offering Memorandum.
(q) Not to take and not permit any of its Subsidiaries to take, directly or indirectly, any action designed to, or that would reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Subordinated Notes. Except as permitted by the Act, the Company will not distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Subordinated Notes.
(r) To comply with all of its agreements in the Indenture, the Registration Rights Agreement and the other Operative Documents.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, Guarantors jointly and severally, severally agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular as may then be amended or supplemented Memorandum as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not towill not, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that which is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities (which specifically excludes the domestic and international credit facilities existing as of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities date hereof) of the Company, as applicablethe Guarantors, or sell or grant optionsany of their respective subsidiaries, rights or warrants except (i) for the Exchange Notes in connection with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Exchange Offer, (ii) enter into any swap or other derivatives transaction that transfers for the existing contractual right of Inverness\ Phoenix Capital LP to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities register certain common stock of the Company or (iviii) publicly announce an offering with the prior consent of Xxxxxx Brothers Inc.
(g) So long as any debt securities of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company substantially similar mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Notes or securities convertible or exchangeable into such debt securities, in each case without Company and/or the prior written consent of the Representative, on behalf of Guarantors as the Initial PurchasersPurchasers may reasonably request.
(h) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the part of the Company or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree to reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company or any of the Guarantors for loss of profits or otherwise. Notwithstanding the foregoing, the Company and the Guarantors shall not be required to reimburse the Initial Purchasers if this Agreement is terminated as a result of the conditions in Section 7(k) hereof not being satisfied.
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it the Company hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ij) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, the Guarantors Company and their respective affiliates its subsidiaries have not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company or the Guarantors and its subsidiaries will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") MarketSM securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTALSM Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until From and after the second anniversary Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(n) During the period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes which constitute "restricted securities" under Rule 144(a)(3) that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lo) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(np) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(oq) The Company and the Guarantors agree to cause the Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Exchange Notes to be offered in exchange for the Notes, and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(r) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(s) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(t) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
(u) The Company and its subsidiaries will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchasers and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and will the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by 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 by the Initial Purchasers or during the 360 days following the Closing Date, whichever is shorter, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) During the period specified in Section 5(c) hereof, to qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws so as registration or qualification in effect throughout such period and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum, or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
(m) In connection with Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any offer or sale of the Notesforegoing (including financial statements), including the Company mailing and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, delivering of copies thereof to the Initial Purchasers and any of their affiliatespersons designated by it in the quantities specified herein, as (ii) all costs and expenses related to whom the Company transfer and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D delivery of the Securities ActSeries A Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any public offering within the meaning of Section 4(a)(2) of the Securities Act other agreements or documents in connection with any offer the offering, purchase, sale or sale delivery of the Notes and/or Series A Notes, (iiiv) all expenses in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply connection with the offering restrictions requirement registration or qualification of Regulation S.
(n) The Company the Series A Notes and the Guarantors agree to comply with all terms Subsidiary Guarantees for offer and conditions sale under the securities or Blue Sky laws of the agreements set forth several states and all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the representation letters filing fees and fees and disbursements of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC counsel for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the Notes.cost of printing certificates
Appears in 1 contract
Samples: Purchase Agreement (Iae Inc)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly Guarantors covenants and severally, agree agrees with each of the Initial Purchasers as followsUnderwriters that:
(a) The During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as the Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Company and the Guarantors will furnish to advise the Initial Purchasers, without charge, within one business day Underwriters promptly (i) of the date issuance by the Commission of any stop order suspending the effectiveness of the Offering CircularRegistration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, such number of copies or of the Offering Circular as may then be amended suspension of the qualification of the Securities for offering or supplemented as sale in any jurisdiction, or of the initiation of any proceedings for any of such purposes and (ii) of the happening of any event that would have the effect of causing any Preliminary Prospectus or the Prospectus at the time it is delivered to a prospective purchaser to 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 under which they may reasonably requestwere made, not misleading.
(b) The Company and the Guarantors will prepare will, without charge, prior to 10:00 a.m., New York City time, on the Offering Circular in a form approved second business day succeeding the date of this Underwriting Agreement and during the Prospectus Delivery Period, provide to each Underwriter and to counsel for the Underwriters, and to those persons identified by any Underwriter to the Company, as many copies of any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and any amendments or supplements thereto, as such Underwriter may reasonably request. The Company and the Guarantors consent to the use of the Disclosure Package and the Prospectus, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and will not make any amendment or supplement to Underwriters in connection with sales of the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringSecurities.
(c) The During the Prospectus Delivery Period, the Company and each of the Guarantors consents will not amend or supplement any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus unless the Underwriters shall previously have been furnished a copy of, and a reasonable period of time to review, the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities proposed amendment or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notessupplement.
(d) If, at any time prior to completion of during the distribution of the Notes by the Initial Purchasers to Eligible PurchasersProspectus Delivery Period, any event occurs shall occur or information becomes known thatcircumstances shall exist that make it necessary or advisable to amend or supplement any Preliminary Prospectus, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus, as the case may be, in order to make such Preliminary Prospectus, the Prospectus, the Disclosure Package or such Issuer Free Writing Prospectus, as applicable, not misleading in the light of the circumstances under which they were made, or if it for any other reason it shall be necessary or advisable, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial PurchasersUnderwriters, should be set forth in to amend or supplement any Preliminary Prospectus, the Pricing Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus, as the Offering Circular so that case may be, to comply with applicable law, the Pricing Company and the Guarantors will (subject to Section 6(c) above) forthwith amend or supplement such Preliminary Prospectus, the Prospectus, the Disclosure Package or the Offering Circularsuch Issuer Free Writing Prospectus, as then applicable, at their own expense so that, as so amended or supplemented, does such Preliminary Prospectus, the Prospectus, the Disclosure Package or such Issuer Free Writing Prospectus, as applicable, will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order otherwise fail to comply with any applicable law, the .
(e) The Company and the Guarantors will forthwith prepare an appropriate supplement use their reasonable best efforts to cooperate with the Underwriters and counsel for the Underwriters in connection with the qualification or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None registration of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes Securities for offering and sale under the securities or “Blue Sky Sky” laws of such jurisdictions as the Initial Purchasers Underwriters may request reasonably designate and to comply with will continue such laws so as to permit the continuance of sales and dealings therein qualifications in such jurisdictions effect for as long as may be necessary to complete the distribution sale of the NotesSecurities pursuant to this Underwriting Agreement; provided provided, however, that in connection therewith none of the Company or any of and the Guarantors shall not will be required to (i) qualify as a foreign corporations in any jurisdiction in which they would corporation where it is not otherwise be required now so qualified or to so qualify, (ii) file execute a general consent to service of process in any such jurisdiction, jurisdiction or (iii) to take any other action that would subject themselves it to general service of process or to taxation in respect of doing business in any jurisdiction in which they would it is not otherwise be so subject.
(f) The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule.
(g) For a period commencing on During the date hereof and ending on the 60th day after the date of the Offering CircularProspectus Delivery Period, the Company will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Guarantors Company will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule II hereto and any other Issuer Free Writing Prospectuses that the Lead Representative and the Company shall hereafter expressly agree in writing to treat as part of the Disclosure Package) unless the Lead Representative has previously been furnished a copy of, and a reasonable period of time to review, such Issuer Free Writing Prospectus. The Company agrees that it will comply with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. If any event occurs such that the Company determines or becomes aware that any Issuer Free Writing Prospectus contains a statement that conflicts in any material respect with the information contained in the Registration Statement (including any document incorporated by reference therein), any Preliminary Prospectus (that has not tobeen superceded or modified) or the Prospectus, directly or indirectly, then the Company will immediately (i) offer for sale, sell, or otherwise dispose notify the Underwriters of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company occurrence and (ii) enter into any swap amend or other derivatives transaction that transfers to another, in whole or in part, any of supplement the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, Issuer Free Writing Prospectus with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchaserscorrective information.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in prohibited by Regulation M under the stabilization or manipulation of the price of any security of the Company or the Guarantors 1934 Act, in connection with the offering distribution of the NotesSecurities contemplated hereby.
(i) During the period five years after the date of this Underwriting Agreement, so long as the Company is not subject to the requirements of the 1934 Act to file periodic reports with the Commission, the Company will furnish to the Lead Representative and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of each report or financial statement furnished to or filed with the Commission, or any securities exchange on which any class of securities or the Company is listed, and from time to time, such other information concerning the Company and its subsidiaries as the Lead Representative may reasonably request.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of business day following the Closing Date, neither the Company and nor any Guarantor will, without the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any prior written consent of the Notes that have been acquired by any of themLead Representative, except for Notes purchased by the Companywhich consent shall not be unreasonably withheld, the Guarantors directly or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not indirectly, issue, sell, offer to sell, offer grant any option 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 Notes in or otherwise dispose of any debt securities other than debt securities having a manner that would require the registration under the Securities Act term of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notesless then one year, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, except as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth otherwise disclosed in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transferRegistration Statement.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers as followsyou that:
(a) The Company and It will advise you promptly and, if requested by any of you, confirm such advice in writing, (i) of any request by the Guarantors will furnish Commission for amendments to the Initial PurchasersRegistration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, without charge, within one business day (ii) of the date issuance by the Commission or any state securities commission of any stop order suspending the qualification or effective ness of the Offering Circular, such number of copies Registration Statement or of the Offering Circular as may then be amended suspension of qualification or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular exemption of any Securities for offering or sale in a form approved any jurisdiction designated by the Initial Purchasers and will not make Underwriters pursuant to Section 5(h) hereof, or the initiation of any proceeding by the Commission or any state securities commission for such purposes, (iii) when any amendment or supplement to the Pricing Disclosure Package or to Registration Statement becomes effective, (iv) of the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company happening of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect event during the period referred to matters unrelated to the Notes or the offering.
(cin Section 5(e) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in below which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at makes any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary made in the Registration Statement untrue or which requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus untrue or which requires the making of any additions to or change in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary . Each of the Company and the Guarantors shall use its reasonable best efforts to supplement or amend prevent the Pricing Disclosure Package issuance of any order suspending the registration of any of the Securities under the Exchange Act or the Offering Circular qualification or exemption of the Securities under any state securities or Blue Sky laws, and, if at any time, any state securities commission or other federal or state regulatory authority shall issue an order suspending the qualification or effectiveness of the Registration Statement or the qualifications or exemption of the securities under any state securities or Blue Sky laws, the Company and the Guarantors shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) It will not, prior to the Closing Date, make any amendments or supplements to the Prospectus, of which you shall not previously have been advised and provided a copy within two business days prior to the delivery thereof or to which you shall reasonably object.
(c) The Company, the Guarantors and the Subsidiary Guarantors consent to your use of the Prospectus (and any amendments or supplements thereto) in order connection with offers and resales of the Securities contemplated hereunder.
(d) It will prepare the Prospectus, the form and substance of which shall be satisfactory to comply you and file the Prospectus (and any amendments or supplements thereto) in such form with the Commission within the applicable period specified in and as required by Rule 424(b) under the Act; during the period specified in Section 5(e) below, it will not file any lawfurther amendment to the Registration Statement and will not make any amendment or supplement to the Prospectus, of which you shall not previously have been advised and provided a copy within two business days prior to the delivery thereof or to which you shall reasonably object after being so advised; and, during such period, it will prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Securities by you, and it will use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective .
(e) As soon as practicable, but in no event later than 10:00 A.M., New York City time on the second business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of your counsel, a prospectus is required by law to be delivered in connection with sales by any of you or a dealer, the Company and the Guarantors will forthwith prepare an appropriate furnish in New York City to each of you as many copies of the Prospectus (and of any amendment or supplement or thereto) as you may reasonably request.
(f) The Company and the Guarantors will furnish to you seven conformed copies of the Registration Statement as first filed with the Commission and of each amendment theretoto it, including all exhibits, and will expeditiously furnish to the Initial Purchasers you and dealers a reasonable each underwriter designated by you such number of conformed copies thereofof the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(eg) None of If, during the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representativeperiod specified in Section 5(e), which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred shall occur or occurs condition shall exist as a result of which such Free Writing Offering Document conflicts with it becomes necessary to amend or supplement the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Prospectus in order to make the statements therein, in light of the circumstances existing as of the date the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with any law, it will, as promptly as practicable, prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus as so amended or supplemented, will not, in the light of the circumstances then prevailingexisting as of the date the Prospectus is so delivered, not be misleading, and will comply with applicable law, and will furnish to you without charge such number of copies thereof as promptly you may reasonably request.
(h) Prior to any public offering of the Securities, it will cooperate with you and your counsel in connection with the registration or qualification of the Securities for offer and sale by you and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request (provided that neither the Company nor any of the Guarantors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject or to subject itself to taxation in excess of a minimal dollar amount in any such jurisdiction). The Company and the Guarantors will continue such registration or qualification in effect so long as required by law for distribution of the Securities and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification.
(i) The Company will make generally available to its security holders as soon as practicable an earnings statement covering a period of at least twelve months beginning after becoming aware thereofthe "effective date" (as defined in Rule 158 under the Act) of the Registration Statement) that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(j) So long as the Securities are outstanding, the Company will give notice thereof file on a timely basis with the Commission, to the Initial Purchasers through the Representative and, if requested extent such filings are accepted by the RepresentativeCommission, and whether or not the Company has a class of securities registered under the Securities Exchange Act of 1934, as amended (the "1934 Act"), the annual reports, quarterly reports and other documents that the Company would be required to file if it were subject to Section 13 or Section 15 of the 1934 Act. For so long as you are making a market in the Securities, but in no event, more than five years from the date hereof, the Company will prepare furnish to you copies of all such reports and furnish without charge information, together with such other documents, reports and information as shall be furnished by the Company to each Initial Purchaser a Free Writing Offering Document or the holders of the Securities, and such other document which will correct such conflict, statement or omissioninformation concerning the Company and its subsidiaries as you reasonably may request.
(fk) Promptly from time to time to take such action So long as the Initial Purchasers Securities are outstanding, the Company will furnish to you as soon as available copies of all reports or other communications furnished to its security holders or furnished to or filed with the Commission and such other publicly available information concerning it and its subsidiaries as you may reasonably request request.
(l) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all costs, expenses, fees and taxes in connection with or incident to qualify (i) the Notes printing, processing, filing and distribution of the Registration Statement, the Prospectus, the preliminary prospectus and the Prospectus and all amendments or supplements thereto (but not including, however, legal fees and expenses of your counsel incurred in connection therewith), including such copies as may be reasonably requested by you, (ii) the issuance, transfer and delivery of the Securities to you, including any transfer or other taxes payable thereon, (iii) the registration or qualification of the Securities for offering offer and sale under the securities or Blue Sky laws of such the jurisdictions as referred to in paragraph 5(h) above (including, in each case, any filing fees and fees and expenses of counsel to the Initial Purchasers may request and to comply with such laws so as to permit Underwriters incurred in connection therewith), (iv) the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution rating of the Notes; provided that in connection therewith Securities by investment rating agencies, (v) the Company or any approval of the Guarantors shall not be required to Securities by DTC for "book-entry" transfer, and (ivii) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service the performance by each of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not toof its other obligations under this Agreement, directly or indirectlyincluding (without limitation) the fees of the Trustee, (i) offer for salethe cost of its personnel and other internal costs, sellthe cost of printing and engraving the certificates representing the Securities, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than and all expenses and taxes incident to the Company) by any person at any time in the future of) any debt securities sale and delivery of the Company substantially similar Securities to the Notes or securities convertible into or exchangeable for such debt securities you (but not including, however, legal fees and expenses of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, your counsel incurred in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasersconnection therewith).
(hm) The Company and It will use the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth Securities in the Pricing Disclosure Package and manner described in the Offering Circular Prospectus under the caption “"Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S."
(n) The Company It will not voluntarily claim and will actively resist any attempts to claim the Guarantors agree to comply with all terms and conditions benefit of any usury laws against the holders of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transferSecurities.
(o) The Company and the Guarantors It will do and perform all things required or necessary to be done and performed under this Agreement by them it prior to or after the Closing Date, Date and will use its reasonable best efforts to satisfy all conditions precedent on its part to the Initial Purchasers’ obligations hereunder delivery of the Securities.
(p) It will not, so long as the Securities are outstanding, be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to purchase be registered under Section 8 of the NotesInvestment Company Act of 1940, as amended (the "'40 Act").
(q) Each of the Guarantors and the Company (with the exception of Marriott Financial Services, Inc.) will execute and deliver, file and record all instruments and documents, and will do all such acts and other things as are necessary to subject the Collateral (as defined in the Indenture) to the security interests intended to be created by the Pledge and Security Agreement (as defined in the Indenture) and as are reasonably necessary or advisable to perfect the security interests intended to be created thereby.
(r) During the period beginning on the date hereof and continuing to and including the Closing Date, it will not offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any Guarantor or any warrants, rights or options to purchaser or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Securities and the Guarantees (other than (i) the Securities and the Guarantees and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Underwriters.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents agrees:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, of (i) the use issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of the Pricing Disclosure Package and Series A Notes for offering or sale in any jurisdiction, or the Offering Circular in accordance with the securities or Blue Sky laws initiation of the jurisdictions in which the Notes are offered any proceeding for such purpose by the Initial Purchasers Commission or any state securities commission or other regulatory authority, and by all dealers to whom Notes may be sold, in connection with (ii) the offering and sale happening of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or that makes any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary 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 were made, not misleading. The Company and each Guarantor shall use its reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Series A Notes under any state securities or Blue Sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Series A Notes under any state securities or Blue Sky laws, the Company and each Guarantor shall use all commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to 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. The Company and each Guarantor consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Exempt Resales that are in compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless you shall previously have been advised of, and shall not have reasonably objected to, such amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished a copy of such amendment or supplement. The Company shall reasonably promptly prepare, upon any reasonable request by you, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales. If, in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the consummation of the Exchange Offer, any event shall occur that, in the judgment of the Company or in the judgment of counsel to you, makes any statement of a material fact 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 in the Offering Memorandum, in light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply in all material respects with any lawapplicable laws, the Company shall promptly notify you of such event and the Guarantors will forthwith prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
Offering Memorandum so that (ei) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information statements in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum as amended or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements thereinsupplemented will, in the light of the circumstances then prevailingat the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, as promptly as practicable after becoming aware thereof, be misleading and (ii) the Company Offering Memorandum will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply in all material respects with applicable law.
(fd) Promptly from time to time to take such action as To cooperate with you and your counsel in connection with the Initial Purchasers may reasonably request to qualify qualification of the Series A Notes for offering offer and sale by you and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided (provided, however, that in connection therewith the Company or any of the Guarantors shall not be required obligated to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction in which it is not now so subject or (iii) subject themselves itself to taxation in excess of a nominal amount in any such jurisdiction where it is not then so subject). Subject to the provisions in which the first sentence of this Section 6(d), the Company shall continue such qualification in effect so long as required by law for distribution of the Series A Notes.
(e) Prior to the Closing Date, to furnish to you, as soon as they would not otherwise have been prepared, any internal combined financial statements of the Company that have been prepared by the Company for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(f) To use all commercially reasonable efforts to do and perform all things required to be subjectdone and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Series A Notes.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Series A Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers you or the Eligible Purchasers of the Series A Notes.
(mh) In For a period of 90 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities of the Company in a public or private offering for cash having a maturity of more than one year from the date of issue of such securities, except (i) for the Series B Notes in connection with the Exchange Offer or (ii) with the prior consent of each of the Initial Purchasers, which consent shall not be unreasonably withheld.
(i) During any offer period that the Company is not subject to Section 13 or sale Section 15(d) of the Exchange Act, for the period that is two years after the Closing Date or for so long as necessary to comply with Rule l44A in connection with resales by registered holders or beneficial owners of the Notes, the Company and the Guarantors will not engagewhichever is longer, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not available to engage (i) in any form of general solicitation such registered holder or general advertising (within the meaning of Regulation D beneficial owner of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act Notes in connection with any offer or sale thereof and any prospective purchaser of the Notes and/or from such registered holder or beneficial owner, the information required by Rule 144A(d) (ii4) under the Securities Act (or any successor provision thereto).
(j) To comply with its agreements in any directed selling effort with respect to the Notes within the meaning of Regulation SRegistration Rights Agreements, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(ok) The Company and To use all commercially reasonable efforts to permit the Guarantors will do and perform all things required or necessary Series A Notes to be done designated Private Offerings, Resales and performed Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(l) To apply the net proceeds from the sale of the Series A Notes being sold by the Company as set forth in the Offering Memorandum under this Agreement by them prior to the caption "Use of Proceeds".
(m) During the period that is two years after the Closing Date, to take such steps as shall be necessary to ensure that the Company does not become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
(n) To not take, directly or indirectly, any action designed to satisfy all conditions precedent or that might reasonably be expected to cause or result in stabilization or manipulation of the Initial Purchasers’ obligations hereunder price of the Notes to purchase facilitate the sale or resale of the Notes. Except as permitted by the Securities Act, the Company and its subsidiaries will not distribute any offering material in connection with the Exempt Resales.
Appears in 1 contract
Samples: Purchase Agreement (Ball Corp)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they it may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeInitial Purchasers, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, and will prepare and furnish without charge to each the Initial Purchaser Purchasers a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a During the period commencing on the date hereof through and ending on including the 60th day date that is 60 days after the date of the Offering Circularhereof, the Company and each of the Guarantors agree not towill not, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeInitial Purchasers, on behalf offer, sell, contract to sell or otherwise dispose of any debt securities substantially similar to the Notes issued or guaranteed by the Company or any of the Initial PurchasersGuarantors and having a tenor of more than one year except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) Upon request, so long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers and to the holders of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree not will take precautions designed to sellinsure that any offer or sale, offer for sale direct or solicit offers indirect, in the United States or to buy or otherwise negotiate in respect of any security U.S. person (as defined in Rule 902 under the Securities Act) that would be integrated with ), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by any Initial Purchaser), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in a manner that would require the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration under provisions of the Securities Act of Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSecurities Act.
(mn) In connection with any offer or sale None of the Notes, the Company and or any of the Guarantors will not engage, and will cause their respective affiliates and or any other person acting on its or their behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Guarantors make which no covenantcovenant is given) not to engage will (i) in solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(24(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) engage in any directed selling effort with respect to the Notes efforts within the meaning of Regulation S, and to all such persons will comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will use their best efforts to (i) do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to (ii) satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as it may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Each of the Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeXxxxxx Brothers Inc., on behalf of the Initial Purchasers, except in each case above in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that, so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers, as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally, provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act, the Company shall be deemed to comply with this Section 5(i).
(j) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be designated as Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the “PORTAL MarketSM”) securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until The Company and the second anniversary Guarantors will take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Closing DateNotes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act.
(n) The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lo) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(np) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(oq) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(r) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly Guarantors covenants and severally, agree agrees with each of the Initial Purchasers as followsUnderwriters that:
(a) The During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as the Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Company and the Guarantors will furnish to advise the Initial Purchasers, without charge, within one business day Underwriters promptly (i) of the date issuance by the Commission of any stop order suspending the effectiveness of the Offering CircularRegistration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, such number of copies or of the Offering Circular as may then be amended suspension of the qualification of the Securities for offering or supplemented as sale in any jurisdiction, or of the initiation of any proceedings for any of such purposes and (ii) of the happening of any event that would have the effect of causing any Preliminary Prospectus or the Prospectus at the time it is delivered to a prospective purchaser to 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 under which they may reasonably requestwere made, not misleading.
(b) The Company and the Guarantors will prepare will, without charge, prior to 10:00 a.m., New York City time, on the Offering Circular in a form approved second business day succeeding the date of this Underwriting Agreement and during the Prospectus Delivery Period, provide to each Underwriter and to counsel for the Underwriters, and to those persons identified by any Underwriter to the Company, as many copies of any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and any amendments or supplements thereto, as such Underwriter may reasonably request. The Company and the Guarantors consent to the use of the Disclosure Package and the Prospectus, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and will not make any amendment or supplement to Underwriters in connection with sales of the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringSecurities.
(c) The During the Prospectus Delivery Period, the Company and each of the Guarantors consents will not amend or supplement any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus unless the Underwriters shall previously have been furnished a copy of, and a reasonable period of time to review, the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities proposed amendment or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notessupplement.
(d) If, at any time prior to completion of during the distribution of the Notes by the Initial Purchasers to Eligible PurchasersProspectus Delivery Period, any event occurs shall occur or information becomes known thatcircumstances shall exist that make it necessary or advisable to amend or supplement any Preliminary Prospectus, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus, as the case may be, in order to make such Preliminary Prospectus, the Prospectus, the Disclosure Package or such Issuer Free Writing Prospectus, as applicable, not misleading in the light of the circumstances under which they were made, or if it for any other reason it shall be necessary or advisable, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial PurchasersUnderwriters, should be set forth in to amend or supplement any Preliminary Prospectus, the Pricing Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus, as the Offering Circular so that case may be, to comply with applicable law, the Pricing Company and the Guarantors will (subject to Section 6(c) above) forthwith amend or supplement such Preliminary Prospectus, the Prospectus, the Disclosure Package or the Offering Circularsuch Issuer Free Writing Prospectus, as then applicable, at their own expense so that, as so amended or supplemented, does such Preliminary Prospectus, the Prospectus, the Disclosure Package or such Issuer Free Writing Prospectus, as applicable, will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order otherwise fail to comply with any applicable law, the .
(e) The Company and the Guarantors will forthwith prepare an appropriate supplement use their reasonable best efforts to cooperate with the Underwriters and counsel for the Underwriters in connection with the qualification or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None registration of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes Securities for offering and sale under the securities or “Blue Sky Sky” laws of such jurisdictions as the Initial Purchasers Underwriters may request reasonably designate and to comply with will continue such laws so as to permit the continuance of sales and dealings therein qualifications in such jurisdictions effect for as long as may be necessary to complete the distribution sale of the NotesSecurities pursuant to this Underwriting Agreement; provided provided, however, that in connection therewith none of the Company or any of and the Guarantors shall not will be required to (i) qualify as a foreign corporations in any jurisdiction in which they would limited liability company where it is not otherwise be required now so qualified or to so qualify, (ii) file execute a general consent to service of process in any such jurisdiction, jurisdiction or (iii) to take any other action that would subject themselves it to general service of process or to taxation in respect of doing business in any jurisdiction in which they would it is not otherwise be so subject.
(f) The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule.
(g) For a period commencing on During the date hereof and ending on the 60th day after the date of the Offering CircularProspectus Delivery Period, the Company will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Guarantors Company will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule II hereto and any other Issuer Free Writing Prospectuses that the Lead Representatives and the Company shall hereafter expressly agree in writing to treat as part of the Disclosure Package) unless the Lead Representatives has previously been furnished a copy of, and a reasonable period of time to review, such Issuer Free Writing Prospectus. The Company agrees that it will comply with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. If any event occurs such that the Company determines or becomes aware that any Issuer Free Writing Prospectus contains a statement that conflicts in any material respect with the information contained in the Registration Statement (including any document incorporated by reference therein), any Preliminary Prospectus (that has not tobeen superceded or modified) or the Prospectus, directly or indirectly, then the Company will immediately (i) offer for sale, sell, or otherwise dispose notify the Underwriters of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company occurrence and (ii) enter into any swap amend or other derivatives transaction that transfers to another, in whole or in part, any of supplement the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, Issuer Free Writing Prospectus with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchaserscorrective information.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in prohibited by Regulation M under the stabilization or manipulation of the price of any security of the Company or the Guarantors 1934 Act, in connection with the offering distribution of the NotesSecurities contemplated hereby.
(i) During the period five years after the date of this Underwriting Agreement, so long as the Company is not subject to the requirements of the 1934 Act to file periodic reports with the Commission, the Company will furnish to the Lead Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of each report or financial statement furnished to or filed with the Commission, or any securities exchange on which any class of securities or the Company is listed, and from time to time, such other information concerning the Company and its subsidiaries as the Lead Representatives may reasonably request.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of business day following the Closing Date, neither the Company and nor any Guarantor will, without the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any prior written consent of the Notes that have been acquired by any of themLead Representatives, except for Notes purchased by the Companywhich consent shall not be unreasonably withheld, the Guarantors directly or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not indirectly, issue, sell, offer to sell, offer grant any option 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 Notes in or otherwise dispose of any debt securities other than debt securities having a manner that would require the registration under the Securities Act term of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notesless then one year, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, except as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth otherwise disclosed in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transferRegistration Statement.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering Memorandum untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchasers and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to Company as many copies of the Offering Circular of which Memorandum, and any amendments or supplements thereto, as the Initial Purchasers shall not previously have been advised or may reasonably request for the time period specified in Section 5(c). Subject to which they shall reasonably object after being so advised providedthe Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package Offering Memorandum, and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the NotesExempt 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 BY THE INITIAL PURCHASERS AND IN CONNECTION WITH MARKET-MAKING ACTIVITIES OF THE INITIAL PURCHASERS FOR SO LONG AS ANY SERIES A NOTES ARE OUTSTANDING, (I) NOT TO MAKE ANY AMENDMENT OR SUPPLEMENT TO THE OFFERING MEMORANDUM OF WHICH THE INITIAL PURCHASERS SHALL NOT PREVIOUSLY HAVE BEEN ADVISED OR TO WHICH THE INITIAL PURCHASERS SHALL REASONABLY OBJECT AFTER BEING SO ADVISED AND (II) TO PREPARE PROMPTLY UPON THE REASONABLE REQUEST OF ANY OF THE INITIAL PURCHASERS, ANY AMENDMENT OR SUPPLEMENT TO THE OFFERING MEMORANDUM WHICH MAY BE NECESSARY OR ADVISABLE IN CONNECTION WITH SUCH EXEMPT RESALES OR SUCH MARKET-MAKING ACTIVITIES.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating to the Offering Memorandum or Exempt Resales, or (iii) subject themselves to taxation in any jurisdiction in which they would it is not otherwise be now so subject.
(f) So long as any of the Series A Notes remain outstanding and during any period prior to the completion of the Exchange Offer in which the Company and the Guarantors are 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 holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(g) For a period commencing on Whether or not the date hereof and ending on transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the 60th day after the date performance of the Offering Circular, obligations of the Company and the Guarantors agree not tounder this Agreement, directly or indirectly, including: (i) offer for salethe fees, sell, or otherwise dispose disbursements and expenses of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than counsel to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
Offering Memorandum and all amendments and supplements to any of the foregoing (mincluding financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by it in the quantities specified herein, (ii) In all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any offer Blue Sky memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such registration or sale qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes and the Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the reasonable fees and disbursements of the Trustee's counsel in connection with the Indenture, the Notes and the Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Company and the Guarantors will not engage, and will cause their respective affiliates Exchange Offer and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliatesRegistration Statement, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors to DTC relating to hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as specifically provided in this Section, and Sections 8 and 11 hereof, the approval Initial Purchasers will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Series A Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Datethem, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notesany advertising expenses connected with any offers they may make.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Circular or the Offering Circular untrue or that requires any additions to or changes in the Preliminary Offering Circular or the Offering Circular in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Circular and the Guarantors will prepare Offering Circular, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchasers an Offering Circular is required by law to be delivered in a form approved connection with Exempt Resales by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised provided, that this clause shall not apply and (ii) to any filing by prepare promptly upon the Company reasonable request of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents Initial Purchasers, any amendment or supplement to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Circular is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Circular will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating to the Preliminary Offering Circular, the Offering Circular or (iii) subject themselves to taxation Exempt Resales, in any jurisdiction in which they would it is not otherwise be now so subject.
(f) [Intentionally omitted.]
(g) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period prior to the completion of the Exchange Offer in which the Company and the Guarantors agree are not to, directly subject to Section 13 or indirectly, (i15(d) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities Securities Exchange Act of the Company1934, as applicableamended (the "Exchange Act"), or sell or grant options, rights or warrants to make available to any holder of Series A Notes in connection with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, sale thereof and any of the economic benefits or risks of ownership prospective purchaser of such debt securities of Series A Notes from such holder, the Company, whether any such transaction described in clause information (i"Rule 144A Information") or (iirequired by Rule 144A(d)(4) above is to be settled by delivery of debt securities of under the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial PurchasersAct.
(h) The 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 incident to the performance of the obligations of the Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
(m) In connection with Preliminary Offering Circular, the Offering Circular and all amendments and supplements to any offer or sale of the Notesforegoing (including financial statements), including the Company mailing and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, delivering of copies thereof to the Initial Purchasers and any of their affiliatespersons designated by it in the quantities specified herein, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect all costs and expenses related to the Notes within the meaning of Regulation S, transfer and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions delivery of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Series A Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase , including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes., (iv) all expenses in connection with the registration or qualification of the Series A
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or (iii) subject themselves to taxation Exempt Resales, in any jurisdiction in which they would it is not otherwise be now so subject.
(f) The Company will timely file such reports pursuant to the Securities Exchange Act of 1934, as amended (the "EXCHANGE Act"), as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(g) For a period commencing on the date hereof and ending on the 60th day of 3 years after the date Closing Date, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Offering Circular, Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as the Initial Purchasers may reasonably request.
(h) So long as any of the Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act, directly or indirectlyto make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters obligations of the Company and the Guarantors to DTC relating under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required accountants of the Company and the Guarantors (and any accountants of entities acquired by the Company or necessary to be done any Guarantor whose financial statements are included in the Offering Memorandum) in connection with the sale and performed under this Agreement by them prior to delivery of the Closing Date, and to satisfy all conditions precedent Series A Notes to the Initial Purchasers’ obligations hereunder Purchasers and pursuant to purchase Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), 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 Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Subsidiary Guarantees 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 and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes 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, the Notes and the Subsidiary Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section.
Appears in 1 contract
Samples: Purchase Agreement (Pharmerica Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial PurchasersPurchaser, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchaser, without charge, in such quantities as the Initial Purchaser shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers Purchaser and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchaser and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers Purchaser to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchaser should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers Purchaser and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information Initial Purchaser and with their counsel in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together connection with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement qualification of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale by the Initial Purchaser and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided PROVIDED, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree will not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that which is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, the Guarantors or any of their respective subsidiaries in either the capital markets or the bank loan markets, except (i) in exchange for the Exchange Notes in connection with the Exchange Offer or (ii) with the prior consent of the Initial Purchaser.
(g) So long as applicableany of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchaser (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchaser may reasonably request.
(h) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchaser terminating this Agreement pursuant to Section 9 hereof), or sell if this Agreement shall be terminated by the Initial Purchaser because of any failure or grant options, rights or warrants with respect to such debt securities refusal on the part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits Guarantors to comply with the terms or risks of ownership of such debt securities fulfill any of the Companyconditions of this Agreement, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar and the Guarantors agree to reimburse the Notes or securities convertibleInitial Purchaser for all out-of-pocket expenses (including reasonable fees and expenses of its counsel), exercisable or exchangeable into debt securities reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company or (iv) publicly announce an offering of any debt securities of the Guarantors for loss of profits or otherwise. Notwithstanding the foregoing, the Company substantially similar and the Guarantors shall not be required to reimburse the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent Initial Purchaser if this Agreement is terminated as a result of the Representative, on behalf of the Initial Purchasersconditions in Section 7(k) hereof not being satisfied.
(hi) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it the Company hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ij) The Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates have taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market(SM) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until From and after the second anniversary Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) During the period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes which constitute "restricted securities" under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(o) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(np) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(oq) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(r) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ Purchaser's obligations hereunder to purchase the Notes.
(t) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Purchase Agreement (Tsi Finance Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, Guarantors agree with each of the Initial Purchasers as follows:
(a) The Company and Until the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes Securities by the Initial Purchasers to Eligible Purchasers, the Company will advise the Initial Purchasers promptly and, if requested, will confirm such advice in writing, of any event occurs or information becomes known that, material adverse change in the judgment condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and its Subsidiaries (as defined), taken as a whole, or any of the Guarantors or in the opinion happening of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package any event or the Offering Circular so that the Pricing Disclosure Package existence of any condition which requires any amendment or supplement to the Offering Circular, Memorandum (as then amended or supplemented, does ) so that the Offering Memorandum (x) will not include contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it (y) will comply with applicable law.
(b) The Company will furnish to the Initial Purchasers, without charge, such number of copies of the Offering Memorandum, as they may then be amended or supplemented, as they may reasonably request.
(c) The Company will not make any amendment or supplement to the Preliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall object in writing after being so advised unless, in the opinion of counsel to the Company, such amendment or supplement is necessary to comply with applicable law.
(d) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to the Initial Purchasers, without charge, in such reasonable quantities as the Initial Purchasers shall have requested or may hereafter request, copies of the Preliminary Offering Memorandum. The Company consents to the use, in
(e) If, at any time prior to completion of the distribution of the Securities by the Initial Purchasers to Eligible Purchasers, any event shall occur or condition shall exist that in the judgment of the Company or in the opinion of the Initial Purchasers based on advice of counsel requires any amendment or supplement or amend the Pricing Disclosure Package or to the Offering Circular Memorandum (as then amended or supplemented) so that the Offering Memorandum (x) will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in order to the light of the circumstances under which they were made, not misleading, or (y) will comply with any applicable law, the Company and the Guarantors will will, in each such case subject to Section 4(c), forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable that number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent thereof as they shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissionreasonably request.
(f) Promptly from time to time to take such action as The Company will cooperate with the Initial Purchasers may reasonably request to qualify and with their counsel in connection with the Notes qualification of the Securities for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and to comply with will file such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent consents to service of process or other documents necessary or appropriate in any order to effect such jurisdiction, or (iii) subject themselves to taxation qualification; PROVIDED that in any jurisdiction in which they would not otherwise no event shall the Company be subject.obligated
(g) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering CircularSecurities are outstanding, the Company and will furnish to the Guarantors agree not to, directly or indirectly, Initial Purchasers (i) offer for saleas soon as reasonably practicable, sell, or otherwise dispose a copy of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities each report of the Company substantially similar to filed with the Notes or securities convertible into or exchangeable for such debt securities of Securities and Exchange Commission (the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company "Commission") and (ii) enter into any swap or from time to time such other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of information concerning the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of as the Initial PurchasersPurchasers may reasonably request.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes Securities to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “"Use of Proceeds" in the Offering Memorandum.”
(i) The CompanyCompany has not taken, the Guarantors and their respective affiliates nor will not it take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Securities to facilitate the sale or resale of the Securities. Except as permitted by the Act, the Company or the Guarantors will not distribute any offering material in connection with the offering Exempt Resales. Except following the effectiveness of the NotesExchange Offer Registration Statement or the Shelf Registration Statement (each as defined in the Registration Rights Agreement), the Company will not solicit any offers to buy and will not offer to sell the Securities by means of any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) or by means of any directed selling efforts (as defined under Regulation S and the Commission's releases related thereto).
(j) The Company and will assist the Guarantors will use their commercially reasonable efforts to permit Initial Purchasers in causing the Notes Securities to be eligible for clearance and settlement through DTCtrading on the PORTAL market.
(k) Until the second anniversary of From and after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (so long as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of themthe Securities Exchange Act of 1934, except for Notes purchased by as amended (the Company"Exchange Act"), the Guarantors Company will furnish to holders of the Securities and prospective purchasers of Securities designated by such holders, upon request of such holders or any of their respective affiliates and resold in a transaction registered such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct to permit compliance with Rule 144A in connection with resales of the Securities.
(l) The Company and the Guarantors agree agrees 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 Notes Securities in a manner that would require the registration under the Securities Act of the sale by the Company to the Initial Purchasers or by the Initial Purchasers to the Eligible Purchasers of the NotesSecurities.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all of the terms and conditions of the Registration Rights Agreement, and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes Securities by DTC for “"book entry” " transfer.
(n) The Company agrees that not later than any registration of the Securities pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Company shall use its best efforts to cause the Indenture to be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and will cause to be entered into any necessary supplemental indentures in connection therewith.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement shall not resell any Securities that have been acquired by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notesit.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to The Company and each of the Guarantors will promptly take such action actions as the Initial Purchasers may may, from time to time, reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company or the Guarantors substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicableCompany or the Guarantors, or sell or grant options, rights or warrants with respect to such debt securities of the Company or the Guarantors or securities convertible into or exchangeable for such debt securities of the Company and the Guarantors, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the CompanyCompany or the Guarantors, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or the Guarantors or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or the Guarantors substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Guarantors, or (iv) publicly announce an offering of any debt securities of the Company or the Guarantors substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays, on behalf of the Initial Purchasers. For the avoidance of doubt, nothing contained in this Section 5(g) shall prohibit or in any way restrict, or be deemed to prohibit or in any way restrict, the issuance of the Notes pursuant to this Agreement or the issuance of any ‘Additional Notes’ of the same series in accordance with the terms of the Indenture.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, at their expense, furnish to the Initial Purchasers, and, upon request, furnish to the holders of the Notes and prospective purchasers of the Notes, the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until During the second anniversary of period one year after the Closing Date, each of the Company and the Guarantors will not, and will not permit any of their respective controlled affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation SS under the Securities Act, and to comply with the offering restrictions requirement of Regulation S.S of the Securities Act.
(no) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform take all things actions that are (i) required or necessary to be done and performed by them under this Agreement by them prior to the Closing Date, and (ii) required or necessary to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (B&G Foods, Inc.)
Agreements of the Company and the Guarantors. The Company and each of the Dyersburg Guarantors, jointly and severally, covenant and agree with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Notes 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) of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company happening of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each event that makes any statement of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, a material fact made in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular so Memorandum untrue or that requires the Pricing Disclosure Package making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. The Company and the Dyersburg Guarantors shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or if it is necessary to supplement other regulatory authority shall issue an order suspending the qualification or amend the Pricing Disclosure Package exemption of any Notes or the Offering Circular in order to comply with Guarantees of Notes under any lawstate securities or Blue Sky laws, the Company and the Dyersburg Guarantors will forthwith prepare an appropriate supplement shall use their best efforts to obtain the withdrawal or amendment thereto, and will expeditiously lifting of such order at the earliest possible time.
(b) To furnish to the Initial Purchasers and dealers a reasonable number those persons identified by the Initial Purchasers to the Company, without charge, as many copies of copies thereofthe Preliminary Offering Memorandum and the Offering Memorandum, including all documents incorporated therein by reference, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and the Dyersburg Guarantors consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) None Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof (unless in the opinion of counsel to the Company such amendment or supplement is necessary, in the judgement of counsel to the Company, to make the statements made therein not misleading). The Company and the Dyersburg Guarantors shall promptly prepare, upon the Initial Purchasers' reasonable request, any Guarantor will make amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(d) If, after the date hereof and prior to consummation of any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeExempt Resale, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs shall occur as a result of which such Free Writing Offering Document conflicts with which, in the information judgment of the Company and the Dyersburg Guarantors or in the reasonable opinion of counsel for the Company and the Dyersburg Guarantors or counsel for the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances then prevailingwhen such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, as promptly as practicable after becoming aware thereofor if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, the Company will give notice thereof (i) to notify the Initial Purchasers through and (ii) forthwith to prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or Offering Memorandum so that the Representative andstatements therein as so amended or supplemented will not, if requested by in the Representativelight of the circumstances when it is so delivered, be misleading, or so that such Preliminary Offering Memorandum or Offering Memorandum will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply with applicable law.
(fe) Promptly from time to time to take such action as To cooperate with the Initial Purchasers may reasonably request to qualify and counsel for the Initial Purchasers in connection with the qualification or registration of the Series A Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with continue such laws qualification in effect so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution Exempt Resales; provided, however, that none of the Notes; provided that Company or the Dyersburg Guarantors shall be required in connection therewith the Company to register or any of the Guarantors shall not be required to (i) qualify as a foreign corporations in corporation where it is not now so qualified or to take any jurisdiction in which they action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any such jurisdictionjurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, or to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company and the Dyersburg Guarantors hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all agreements, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) subject themselves the issuance, transfer and delivery of the Notes and the Guarantees to taxation the Initial Purchasers, (iv) the qualification or registration of the Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and disbursements of counsel for the Initial Purchasers relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in any jurisdiction connection with Exempt Resales, (vi) the preparation of certificates for the Notes and the Guarantees (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's and the Dyersburg Guarantors' counsel and accountants, (viii) all fees and expenses (including fees and expenses of counsel) of the Company in which they would not otherwise be subjectconnection with the approval of the Notes by DTC for "book-entry" transfer, (ix) rating the Notes by rating agencies, (x) the reasonable fees and expenses of the Trustee and its counsel, (xi) the performance by the Company and the Dyersburg Guarantors of their other obligations under this Agreement and the other Operative Documents and (xii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Notes.
(g) For a period commencing on To use the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Series A Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and manner described in the Offering Circular 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 Notes.
(i) The Company, the Guarantors To do and their respective affiliates will not take, directly or indirectly, any action designed perform all things required to be done and performed under this Agreement by them prior to or that has constituted or that reasonably would be expected after the Closing Date and to cause or result in satisfy all conditions precedent on their part to the stabilization or manipulation delivery of the price of any security of Series A Notes and the Company or the Guarantors in connection with the offering of the NotesGuarantees.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Series A Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSeries A Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(k) For so long as any of the Notes remain outstanding and during any period in which the Company and the Guarantors are 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 holder or beneficial owner of Series A Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act.
(l) To cause the Exchange Offer to be made in the appropriate form to permit registered Series B Notes to be offered in exchange for the Series A Notes and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to To comply with all terms of their agreements set forth in the Registration Rights Agreement and conditions of the all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(n) To effect the inclusion of the Notes in PORTAL and to obtain approval of the Series A Notes by DTC for "book-entry" transfer.
(o) The During a period of three years following the Closing Date, to deliver without charge to the Initial Purchasers, as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other publicly available information that the Company shall mail or otherwise make available to its securityholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange and such other publicly available information concerning the Company or any of its subsidiaries, including without limitation, press releases.
(p) Prior to the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared in the ordinary course by the Company and each Dyersburg Guarantor, copies of any unaudited interim financial statements for any period subsequent to the periods covered by the financial statements appearing in the Offering Memorandum.
(q) Not to take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company or any of the Dyersburg Guarantors to facilitate the sale or resale of the Notes. Except as permitted by the Act, none of the Company or the Dyersburg Guarantors will distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes.
(r) To cause the Alamac Guarantors to authorize, execute and deliver the Registration Rights Agreement, the Guarantees and the Indenture.
(s) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the NotesSeries A Notes and the Guarantees.
Appears in 1 contract
Samples: Purchase Agreement (Dyersburg Corp)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors agrees with each of the Initial Purchasers Purchaser as follows:
(a) The Company and will advise the Guarantors Initial Purchaser promptly and, if requested by it, will confirm such advice in writing, within the period of time referred to in the first sentence of subsection (e) below, of any material change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event which makes any material statement made in the Offering Memorandum (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Offering Memorandum (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or of the necessity to amend or supplement the Offering Memorandum (as then amended or supplemented) to comply with any law.
(b) The Company will furnish to the Initial PurchasersPurchaser, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they it may reasonably request.
(bc) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they it shall reasonably object after being so advised providedadvised, that this clause and no such amendment or supplement when it is made, shall contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in which they were made, not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringmisleading.
(cd) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to the Initial Purchaser, without charge, in such quantities as it shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers Purchaser and by all dealers dealers, prior to whom the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum (and of any amendment or supplement thereto) in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes may be sold, are offered by the Initial Purchaser in connection with the offering and sale of the Notes.
(de) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers Purchaser to Eligible Purchasers, any material event occurs or information becomes known that, shall occur that in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchaser's counsel should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, Memorandum (as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary ) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers Purchaser a reasonable number of copies thereof.
(ef) None of the The Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information Initial Purchaser and with its counsel in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together connection with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement qualification of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale by the Initial Purchaser and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering CircularNotes are outstanding, the Company and will furnish to the Guarantors agree not to, directly or indirectly, Initial Purchaser (i) offer for saleas soon as available, sell, or otherwise dispose a copy of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities each report of the Company substantially similar mailed to stockholders or filed with the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Securities and Exchange Commission and (ii) enter into any swap or from time to time such other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of information concerning the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of as the Initial PurchasersPurchaser may reasonably request.
(h) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchaser terminating this Agreement pursuant to Section 9 hereof) or if this Agreement shall be terminated by the Initial Purchaser because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Initial Purchaser for all out-of-pocket expenses (including fees and expenses of its counsel) reasonably incurred by it in connection herewith, but without further obligation on the part of the Company for loss of profits or otherwise.
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds".”
(ij) The CompanyWithout the prior consent of the Initial Purchaser, prior to the Guarantors and their respective affiliates expiration of 90 days after the date of the Offering Memorandum the Company will not offer, sell, contract to sell or otherwise dispose of any note or debenture similar to the Notes having a maturity of more than one year.
(k) Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company nor any of its Subsidiaries (as defined below) has taken, nor will it take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, neither the Company or the Guarantors nor any of its Subsidiaries will distribute any offering material in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities ActExempt Resales.
(l) The Company will use its reasonable best efforts to cause the Notes to be eligible for trading on the PORTAL Market.
(m) From and after the Closing Date, so long as any of the Notes are outstanding and during any period in which the Company is not subject to or filing reports under Section 13 or 15(d) of the Exchange Act, the Company will make available to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A (d) (4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(n) Each of the Company and the Guarantors agree agrees that it will not and will cause its affiliates 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or the Eligible Purchasers of the Notes.
(mo) In connection with any offer or sale None of the Notes, the Company and its affiliates will solicit any offer to buy or offer or sell the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any Notes by means of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising advertising.
(p) With respect to those Notes sold in reliance on Regulation S, (A) none of the Company, its affiliates or any person acting on its or their behalf (other than the Initial Purchaser, as to whom the Company makes no representation) has engaged or will engage in any directed selling efforts within the meaning of Regulation D S and (B) each of the Securities ActCompany and its affiliates and any person acting on its or their behalf (other than the Initial Purchaser, as to whom the Company makes no representation) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, has complied and to will comply with the offering restrictions requirement of Regulation S.
(nq) The During the period from the Closing Date to two years after the Closing Date, the Company and the Guarantors agree will not, and will not permit any "affiliate" (as defined in Rule 144 under the Act) of the Company or the Guarantors to, resell any of the Notes that have been reacquired by them, except for Notes purchased by the Company, the Guarantors or any of their affiliates and resold in a transaction registered under the Act.
(r) The Company agrees to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(os) The Company agrees that in connection with the registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(t) Prior to the Closing Date, the Company will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of any unaudited interim consolidated financial statements of the Company for any period subsequent to the period covered by the most recent consolidated financial statements of the Company appearing in the Offering Memorandum.
(u) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to not claim the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase benefit of any usury laws against any holders of the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Environmental Group International LTD)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, Guarantors hereby agree with each of the Initial Purchasers Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering Memorandum untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company and shall use its reasonable best efforts to prevent the Guarantors will furnish issuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws 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 Series A Notes under any state securities or Blue Sky laws, the Company shall use its reasonable best efforts to obtain the Initial Purchasers, without charge, within one business day withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish to the Initial Purchaser and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers Purchaser to the Company as many copies of the Offering Memorandum, and will any amendments or supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). The Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchaser an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser and in connection with market making activities of the Initial Purchaser for so long as any Series A Notes are outstanding, (i) subject to Section 5(d) below, not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they the Initial Purchaser shall reasonably object in writing within a reasonable time after being so advised providedand (ii) to prepare promptly upon the Initial Purchaser’s reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith promptly to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through Purchaser and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct may designate such conflict, statement or omissionnumber of copies thereof as the Initial Purchaser may reasonably request.
(fe) Promptly from time to time to take such action as To cooperate with the Initial Purchasers may reasonably request Purchaser and counsel to qualify the Initial Purchaser in connection with the registration or qualification of the Series A Notes for offering offer and sale by the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete the distribution of the Noteseffect such registration or qualification; provided provided, however, that in connection therewith the Company or any of the Guarantors shall not be required in connection therewith to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating solely to the Offering Memorandum or Exempt Resales, or (iii) subject themselves to taxation in any jurisdiction in which they would it is not otherwise be now so subject.
(f) From and after the Closing Date, for so long as any of the Notes remain outstanding and are restricted securities within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Company 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 holder of the Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder, the information (“Rule 144A Information”) required by Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
(g) For a period commencing on Whether or not the date hereof transactions contemplated in this Agreement are consummated or this Agreement becomes effective or is terminated, to pay or cause to be paid all costs, expenses, fees and ending on taxes incident to or in connection with this Agreement, including: (i) the 60th day after the date fees, disbursements and expenses of the Offering Circular, counsel to the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities and accountants of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering sale and delivery of the Series A Notes to the Initial Purchaser and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Series B notes 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 and reasonable fees and disbursements of counsel for the Initial Purchaser in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes, (vi) all expenses and listing fees in connection with the application for quotation of the Notes on the PortalSM Market (“PORTAL”), (vii) the fees and expenses of the Trustee and the Trustee’s counsel in connection with the Notes, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes.
, (jx) The all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement and (xi) all other costs and expenses of the Company and the Guarantors will incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section.
(h) To use their commercially reasonable best efforts to permit the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL.
(i) To obtain the approval of DTC for “book-entry” transfer of the Notes, and to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for “book-entry” transfer and to permit the Notes to be eligible for clearance and settlement through DTC.
(kj) Until During the second anniversary of 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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes (other than (i) the Notes and the Guarantors will notGuarantees and (ii) commercial paper issued in the ordinary course of business), and will not permit any of their respective affiliates (as defined in Rule 144 under without the Securities Act) to, resell any prior written consent of the Notes Initial Purchaser.
(k) Prior to the Closing Date, to furnish to the Initial Purchaser as soon as they have been prepared, any internal combined financial statements of the Company that have been acquired by any of them, except for Notes purchased prepared by the Company, Company for any period subsequent to the Guarantors or any of their respective affiliates and resold period covered by the financial statements appearing in a transaction registered under the Securities ActOffering Memorandum.
(l) The Company and the Guarantors agree not 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 Series A Notes to the Initial Purchaser or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series A Notes under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesAct.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as Not to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation Svoluntarily claim, and to comply with actively resist any attempts to claim, the offering restrictions requirement benefit of Regulation S.any usury laws against the holders of any Notes and the Guarantees.
(n) The Company and the Guarantors agree To use commercially reasonable best efforts to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations delivery of the Series A Notes and the Guarantees.
(o) To apply the net proceeds from the sale of the Notes to be sold by it hereunder to purchase in the Notesmanner specified in the Offering Memorandum under the caption “Use of Proceeds.”
Appears in 1 contract
Samples: Purchase Agreement (Broder Bros Co)
Agreements of the Company and the Guarantors. The Each of the --------------------------------------------- Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "EXCHANGE ACT"), to make ------------ available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("RULE 144A INFORMATION") required by --------------------- Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Guarantees 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 and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes and the Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes 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, the Notes and the Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section.
(j) The Company and the Guarantors will To use their commercially reasonable its best efforts to permit effect the inclusion of the Series A Notes in PORTAL and to be eligible maintain the listing of the Series A Notes on PORTAL for clearance and settlement through DTCso long as the Series A Notes are outstanding.
(k) Until To obtain the second anniversary approval of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except DTC for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers "book-entry" transfer of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement all of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes and the Guarantees (other than (i) the Notes and the Guarantees and (ii) commercial paper issued in the ordinary course of business), 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 Series A Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series A Notes 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 Notes and the related Guarantees.
(o) The Company To cause the Exchange Offer to be made in the appropriate form to permit Series B Notes and guarantees thereof by the Guarantors registered pursuant to the Act to be offered in exchange for the Series A Notes and the Guarantors will Guarantees and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in the Registration Rights Agreement.
(q) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the NotesSeries A Notes and the Guarantees.
Appears in 1 contract
Samples: Purchase Agreement (Mail Well Inc)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchaser and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers Purchaser to the Company as many copies of the Preliminary Offering Memorandum and will the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchaser an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser and in connection with market-making activities of the Initial Purchaser for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they the Initial Purchaser shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchaser's reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through Purchaser and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct may designate such conflict, statement or omissionnumber of copies thereof as the Initial Purchaser may reasonably request.
(fe) Promptly from time Prior to time the sale of all Series A Notes pursuant to take such action Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers may reasonably request Purchaser and counsel to qualify the Initial Purchaser in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchaser may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Series A Notes to be eligible for clearance the Initial Purchaser and settlement through DTC.
(k) Until the second anniversary pursuant to Exempt Resales, and all other fees and expenses of the Closing DateCompany in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Company Offering Memorandum and the Guarantors will not, all amendments and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell supplements to any of the Notes that have been acquired by any foregoing (including financial statements), including the mailing and delivering of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale copies thereof to the Initial Purchasers or Purchaser and persons designated by it in the Eligible Purchasers quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Notes.
Series A Notes to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (miii) In connection with any offer all costs of printing or sale of the Notesproducing this Agreement, the Company and the Guarantors will not engage, and will cause their respective affiliates other Operative Documents and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation agreements or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act documents in connection with any offer the offering, purchase, sale or sale delivery of the Notes and/or Series A Notes, (iiiv) all expenses in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply connection with the offering restrictions requirement registration or qualification of Regulation S.
(n) The Company the Series A Notes and the Guarantors agree to comply with all terms Guarantees for offer and conditions sale under the securities or Blue Sky laws of the agreements set forth in the representation letters several states and all costs of the Company printing or producing any preliminary and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.supplemental Blue Sky
Appears in 1 contract
Samples: Purchase Agreement (United Musical Instruments Usa Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to The Company and each of the Guarantors will promptly take such action actions as the Initial Purchasers may may, from time to time, reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company or the Guarantors substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicableCompany or the Guarantors, or sell or grant options, rights or warrants with respect to such debt securities of the Company or the Guarantors or securities convertible into or exchangeable for such debt securities of the Company and the Guarantors, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the CompanyCompany or the Guarantors, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or the Guarantors or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or the Guarantors substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Guarantors, or (iv) publicly announce an offering of any debt securities of the Company or the Guarantors substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays, on behalf of the Initial Purchasers. For the avoidance of doubt, nothing contained in this Section 5(g) shall prohibit or in any way restrict, or be deemed to prohibit or in any way restrict, the issuance of the Notes pursuant to this Agreement or the issuance of any Additional Notes of the same series in accordance with the terms of the Indenture.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, at their expense, furnish to the Initial Purchasers, and, upon request, furnish to the holders of the Notes and prospective purchasers of the Notes, the information required by Rule 144A(d)(4) under the Securities Act (if any). In addition, the Company and the Guarantors agree that, at any time (a) when and to the extent that Rule 15c2-11 under the Exchange Act applies to the Notes; and (b) the Company is not subject to Section 13 or 15(d) of the Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, and there is no publicly available information concerning the Company and the Guarantors which satisfies the requirements of Rule 15c2-11(b) (in each case as determined in good faith by the Company), the Company and the Guarantors will use reasonable effort to make publicly available (within the meaning of Rule 15c2-11(e)) information consistent with Rule 15c2-11(b) by disseminating such information through any method or manner that complies with Rule 15c2-11 as then applicable to the Notes. In making any determination that the Company’s publicly available information is consistent with Rule 15c2-11(b), the Company may rely on any no-action letters or guidance issued by the Commission or the Commission staff indicating that the staff will not recommend enforcement action, including such reliance by the Company in the event that information described in Rule 144A(d)(4) under the Securities Act may be made available for the purpose of satisfying certain conditions of Rule 15c2-11(b).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary Each of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation SS under the Securities Act, and to comply with the offering restrictions requirement of Regulation S.S of the Securities Act.
(no) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform take all things actions that are (i) required or necessary to be done and performed by them under this Agreement by them prior to the Closing Date, and (ii) required or necessary to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (B&G Foods, Inc.)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, 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 Senior Subordinated Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Senior Subordinated Notes under any state securities or Blue Sky laws and, without chargeif 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 Senior Subordinated Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchaser and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers Purchaser to the Company as many copies of the Preliminary Offering Memorandum and will the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial Purchaser an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser and in connection with market-making activities of the Initial Purchaser for so long as any Senior Subordinated Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they the Initial Purchaser shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchaser's reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through Purchaser and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct may designate such conflict, statement or omissionnumber of copies thereof as the Initial Purchaser may reasonably request.
(fe) Promptly from time Prior to time the sale of all Senior Subordinated Notes pursuant to take such action Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers may reasonably request Purchaser and counsel to qualify the Initial Purchaser in connection with the registration or qualification of the Senior Subordinated Notes for offering offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process, or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, for any such period during which the Company is not subject to, and in compliance with, the periodic reporting requirements of Section 13 or Section 15 of the Exchange Act, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchaser may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Senior Subordinated Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Senior Subordinated Notes in connection with any sale thereof and any prospective purchaser of such Senior Subordinated Notes from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Senior Subordinated Notes to be eligible for clearance the Initial Purchaser and settlement through DTC.
(k) Until pursuant to Exempt Resales, and all other fees and expenses in connection with the second anniversary preparation, printing, filing and distribution of the Closing DatePreliminary Offering Memorandum, the Company Offering Memorandum and the Guarantors will not, all amendments and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell supplements to any of the Notes that have been acquired by any foregoing (including financial statements), including the mailing and delivering of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale copies thereof to the Initial Purchasers or Purchaser and persons designated by it in the Eligible Purchasers quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Notes.
Senior Subordinated Notes to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (miii) In all costs of printing or reproducing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Senior Subordinated Notes, (iv) all expenses in connection with the registration or qualification of the Senior Subordinated Notes and the Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any offer preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Initial Purchaser in connection with such registration or sale qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Senior Subordinated Notes and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Senior Subordinated Notes 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, the Notes and the Subsidiary Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Company and the Guarantors will not engage, and will cause their respective affiliates Exchange Offer and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliatesRegistration Statement, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC hereunder for “book entry” transferwhich provision is not otherwise made in this Section.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company substantially similar to the Notes, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securitiessecurities substantially similar to the Notes, in each case without the prior written consent of the RepresentativeXxxxx Fargo Securities, LLC, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) Upon request, so long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers and to the holders of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree not will take precautions designed to sellinsure that any offer or sale, offer for sale direct or solicit offers indirect, in the United States or to buy or otherwise negotiate in respect of any security U.S. person (as defined in Rule 902 under the Securities Act) that would be integrated with ), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in a manner that would require the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration under provisions of the Securities Act of Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSecurities Act.
(mn) In connection with any offer or sale None of the Notes, the Company and or any of the Guarantors will not engage, and will cause their respective affiliates and or any other person acting on its or their behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Guarantors make which no covenantcovenant is given) not to engage will (i) in solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(24(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) engage in any directed selling effort with respect to the Notes efforts within the meaning of Regulation S, and to all such persons will comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will use their best efforts to (i) do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to (ii) satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Preliminary Offering Circular Memorandum, the Pricing Supplement and the Final Offering Memorandum, as may then be amended or supplemented supplemented, as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Preliminary Offering Memorandum, the Pricing Disclosure Package Supplement or to the Final Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and the Guarantors will not make any offer relating to the Notes with any Supplemental Offering Materials without the prior written consent of the Initial Purchasers.
(d) The Company and each of the Guarantors consents consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Final Offering Memorandum, of each Preliminary Offering Memorandum and the Pricing Supplement so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Pricing Disclosure Package and the Final Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(de) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Preliminary Offering Memorandum, the Pricing Disclosure Package Supplement or the Final Offering Circular Memorandum so that the Preliminary Offering Memorandum, the Pricing Disclosure Package Supplement or the Final Offering CircularMemorandum, as then amended or supplementedthe case may be, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Preliminary Offering Memorandum, the Pricing Disclosure Package Supplement or the Final Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(ef) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request reasonably designate and will cooperate in the filing of such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in which they where it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(g) For a period commencing on the date hereof and ending on the 60th day after of 90 days from the date of the Final Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or would reasonably be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicablethe Guarantors or any of their respective subsidiaries, except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer or sell (ii) with the prior consent of Lxxxxx Brothers Inc.
(h) For a period of two years following the Effective Date, to furnish to the Initial Purchasers copies of all materials furnished by the Company to its stockholders and holders of the Notes and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Company’s common stock or grant optionsNotes may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder, rights or warrants provided that any publicly available document shall be deemed to comply with the above delivery requirements with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasersdocument.
(hi) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Final Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Except as stated in this Agreement and in the Preliminary Offering Memorandum or the Final Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the “PORTAL MarketSM”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until During the second anniversary period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates “affiliates” (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(p) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Mariner Energy Resources, Inc.)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, Memorandum does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in which they where it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, the Guarantors or any of their respective subsidiaries, except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer, (ii) with the prior consent of Xxxxxx Brothers Inc or (iii) in accordance with terms of the NRG plan of reorganization.
(g) If not otherwise available on the Commission's Electronic Data Gathering, Analysis and Retrieval system ("XXXXX"), the Company will furnish to the holders of the Notes as applicablesoon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, or sell or grant optionsstockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, rights or warrants as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with respect the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such debt securities quarter in reasonable detail.
(h) If not otherwise available on XXXXX, so long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company or securities convertible into any Guarantor mailed to stockholders generally or exchangeable for such debt securities of the Company filed with any stock exchange or regulatory body and (ii) enter into any swap or from time to time such other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of information concerning the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of Guarantors as the Initial PurchasersPurchasers may reasonably request.
(hi) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ij) The Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their all commercially reasonable efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) Market(SM) (the "PORTAL Market(SM)") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market(SM) and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until During the second anniversary period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes that constitute "restricted securities" under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(n) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company's subsidiaries becomes an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended.
(o) The Company and the Guarantors will use all commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (NRG Energy Inc)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly Guarantors covenants and severally, agree agrees with each of the Initial Purchasers as followsUnderwriters that:
(a) The During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as the Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Company and the Guarantors will furnish to advise the Initial Purchasers, without charge, within one business day Underwriters promptly (i) of the date issuance by the Commission of any stop order suspending the effectiveness of the Offering CircularRegistration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, such number of copies or of the Offering Circular as may then be amended suspension of the qualification of the Securities for offering or supplemented as sale in any jurisdiction, or of the initiation of any proceedings for any of such purposes and (ii) of the happening of any event that would have the effect of causing any Preliminary Prospectus or the Prospectus at the time it is delivered to a prospective purchaser to 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 under which they may reasonably requestwere made, not misleading.
(b) The Company and the Guarantors will prepare will, without charge, prior to 10:00 a.m., New York City time, on the Offering Circular in a form approved second business day succeeding the date of this Underwriting Agreement and during the Prospectus Delivery Period, provide to each Underwriter and to counsel for the Underwriters, and to those persons identified by any Underwriter to the Company, as many copies of any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and any amendments or supplements thereto, as such Underwriter may reasonably request. The Company and the Guarantors consent to the use of the Disclosure Package and the Prospectus, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and will not make any amendment or supplement to Underwriters in connection with sales of the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringSecurities.
(c) The During the Prospectus Delivery Period, the Company and each of the Guarantors consents will not amend or supplement any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus unless the Underwriters shall previously have been furnished a copy of, and a reasonable period of time to review, the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities proposed amendment or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notessupplement.
(d) If, at any time prior to completion of during the distribution of the Notes by the Initial Purchasers to Eligible PurchasersProspectus Delivery Period, any event occurs shall occur or information becomes known thatcircumstances shall exist that make it necessary or advisable to amend or supplement any Preliminary Prospectus, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus, as the case may be, in order to make such Preliminary Prospectus, the Prospectus, the Disclosure Package or such Issuer Free Writing Prospectus, as applicable, not misleading in the light of the circumstances under which they were made, or if it for any other reason it shall be necessary or advisable, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial PurchasersUnderwriters, should be set forth in to amend or supplement any Preliminary Prospectus, the Pricing Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus, as the Offering Circular so that case may be, to comply with applicable law, the Pricing Company and the Guarantors will (subject to Section 6(c) above) forthwith amend or supplement such Preliminary Prospectus, the Prospectus, the Disclosure Package or the Offering Circularsuch Issuer Free Writing Prospectus, as then applicable, at their own expense so that, as so amended or supplemented, does such Preliminary Prospectus, the Prospectus, the Disclosure Package or such Issuer Free Writing Prospectus, as applicable, will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order otherwise fail to comply with any applicable law, the .
(e) The Company and the Guarantors will forthwith prepare an appropriate supplement use their reasonable best efforts to cooperate with the Underwriters and counsel for the Underwriters in connection with the qualification or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None registration of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes Securities for offering and sale under the securities or “Blue Sky Sky” laws of such jurisdictions as the Initial Purchasers Underwriters may request reasonably designate and to comply with will continue such laws so as to permit the continuance of sales and dealings therein qualifications in such jurisdictions effect for as long as may be necessary to complete the distribution sale of the NotesSecurities pursuant to this Underwriting Agreement; provided provided, however, that in connection therewith none of the Company or any of and the Guarantors shall not will be required to (i) qualify as a foreign corporations in any jurisdiction in which they would limited liability company where it is not otherwise be required now so qualified or to so qualify, (ii) file execute a general consent to service of process in any such jurisdiction, jurisdiction or (iii) to take any other action that would subject themselves it to general service of process or to taxation in respect of doing business in any jurisdiction in which they would it is not otherwise be so subject.
(f) The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule.
(g) For a period commencing on During the date hereof and ending on the 60th day after the date of the Offering CircularProspectus Delivery Period, the Company will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Guarantors Company will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule II hereto and any other Issuer Free Writing Prospectuses that the Lead Representative and the Company shall hereafter expressly agree in writing to treat as part of the Disclosure Package) unless the Lead Representative has previously been furnished a copy of, and a reasonable period of time to review, such Issuer Free Writing Prospectus. The Company agrees that it will comply with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. If any event occurs such that the Company determines or becomes aware that any Issuer Free Writing Prospectus contains a statement that conflicts in any material respect with the information contained in the Registration Statement (including any document incorporated by reference therein), any Preliminary Prospectus (that has not tobeen superceded or modified) or the Prospectus, directly or indirectly, then the Company will immediately (i) offer for sale, sell, or otherwise dispose notify the Underwriters of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company occurrence and (ii) enter into any swap amend or other derivatives transaction that transfers to another, in whole or in part, any of supplement the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, Issuer Free Writing Prospectus with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchaserscorrective information.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in prohibited by Regulation M under the stabilization or manipulation of the price of any security of the Company or the Guarantors 1934 Act, in connection with the offering distribution of the NotesSecurities contemplated hereby.
(i) During the period five years after the date of this Underwriting Agreement, so long as the Company is not subject to the requirements of the 1934 Act to file periodic reports with the Commission, the Company will furnish to the Lead Representative and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of each report or financial statement furnished to or filed with the Commission, or any securities exchange on which any class of securities or the Company is listed, and from time to time, such other information concerning the Company and its subsidiaries as the Lead Representative may reasonably request.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of business day following the Closing Date, neither the Company and nor any Guarantor will, without the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any prior written consent of the Notes that have been acquired by any of themLead Representative, except for Notes purchased by the Companywhich consent shall not be unreasonably withheld, the Guarantors directly or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not indirectly, issue, sell, offer to sell, offer grant any option 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 Notes in or otherwise dispose of any debt securities other than debt securities having a manner that would require the registration under the Securities Act term of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notesless then one year, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, except as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth otherwise disclosed in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transferRegistration Statement.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial PurchasersPurchaser, without charge, within one not later than the second business day of following the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers Purchaser and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they shall reasonably object in a timely manner after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Subject to the proviso in Section 5(f), the Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Temporary Notes are offered by the Initial Purchasers Purchaser and by all dealers to whom Temporary Notes may be sold, in connection with the offering and sale of the Temporary Notes.
(d) If, at any time prior to completion of the distribution of the Temporary Notes by the Initial Purchasers Purchaser to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers Purchaser and dealers a reasonable number of copies thereof.
(e) None of Neither the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Temporary Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeInitial Purchaser, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Purchaser and, if requested by the RepresentativeInitial Purchaser, will prepare and furnish without charge to each such Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers Purchaser may reasonably request to qualify the Temporary Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Temporary Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeInitial Purchaser, on behalf except any offer or sale of Temporary Notes, Permanent Notes, Exchange Notes, Temporary Guarantees, Permanent Guarantees, or Exchange Guarantees pursuant to the Initial PurchasersRegistration Rights Agreement, and any filings with the SEC related thereto.
(h) So long as any of the Notes are outstanding and the Company and the Guarantors are so required pursuant to the Indentures, the Company and the Guarantors will, furnish at their expense to the Initial Purchaser, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Temporary Notes to be sold by it such parties hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Temporary Notes.
(jk) The Company and the Guarantors will use their all commercially reasonable efforts to permit the Temporary Notes to be eligible for clearance and settlement through DTC.
(kl) Until For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the second anniversary of Securities Act) from the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except (i) for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold that are sold in a transaction registered under the Securities Act or (ii) in the opinion of counsel, the buyer of such Notes is not acquiring “restricted securities” under Rule 144 under the Securities Act.
(lm) The Company and the Guarantors agree 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 Temporary Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or the Eligible Purchasers of the Temporary Notes.
(m) In connection with any offer or sale of the Notes, the . The Company and the Guarantors will not engagetake reasonable precautions designed to insure that any offer or sale, and will cause their respective affiliates and any person acting on their behalf (other thandirect or indirect, in the United States or to any caseU.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Temporary Notes has been completed (as notified to the Company by the Initial Purchasers Purchaser), is made under restrictions and any of their affiliates, as to whom the Company and the Guarantors make no covenant) other circumstances reasonably designed not to engage (i) affect the status of the offer and sale of the Notes in any form of general solicitation or general advertising (within the meaning of Regulation D United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act) , including any sales pursuant to Rule 144A under, or any public offering within the meaning of Section 4(a)(2) of Regulations D or S of, the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.Act.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ Purchaser’s obligations hereunder to purchase the Temporary Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers as followsyou that:
(a) The It will advise you promptly and, if requested by any of 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 Series J Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering Memorandum (as amended or supplemented from time to time) untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company and each of the Guarantors shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws 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 the Securities under any state securities or Blue Sky laws, the Company and the Guarantors will furnish shall use every reasonable effort to obtain the Initial Purchasers, without charge, within one business day withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The It will furnish the Initial Purchasers and those persons identified as Eligible Purchasers by the Initial Purchasers to the Company as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the accuracy of the Initial Purchasers’ representations and warranties and the Initial Purchasers’ compliance with their agreements set forth in Section 7 hereof, the Company and the Guarantors will prepare consent to the use of the Offering Circular in a form approved Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and in connection with Exempt Resales.
(c) If during such period as in the opinion of counsel for the Initial Purchasers an Offering Memorandum is required to be delivered in connection with Exempt Resales by the Initial Purchasers, it will (i) not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) prepare promptly upon the Initial Purchasers’ reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information condition shall exist as a result of which it becomes known that, in the judgment of the Company necessary to amend or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madeexisting as of the date of the Offering Memorandum, not misleading, or if it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors it will forthwith promptly prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and furnish to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Securities pursuant to Exempt Resales as contemplated hereby, it will cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Securities for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions in the United States as the Initial Purchasers may request and continue such registration or qualification in effect so long as required for Exempt Resales and file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that neither the Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject.
(f) Neither the Company nor any Guarantor will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D of the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(g) So long as the Notes are outstanding, the Company will file on a timely basis with the Commission, to the extent such filings are accepted by the Commission, and whether or not the Company has a class of securities registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the annual reports, quarterly reports and other documents that the Company would be required to file if it were subject to Section 13 or Section 15(d) of the Exchange Act. For so long as the Initial Purchasers are making a market in the Notes, but in no event, more than five years from the date hereof, the Company will furnish to you copies of all such reports and information, together with such other documents, reports and information as shall be furnished by the Company to the holders of the Notes, and such other information concerning the Company and its subsidiaries as you reasonably may request.
(h) So long as the Notes are outstanding, it will furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors to any of its holders or furnished to or filed with the Commission and such other publicly available information concerning the Company, the Guarantors and/or their respective subsidiaries as the Initial Purchasers may reasonably request.
(i) So long as any of the Securities remain outstanding and during any period in which the Company and the Guarantors are not subject to Section 13 or 15(d) of the Exchange Act, upon the request of any holders of Notes it will furnish to such holder and to any prospective purchaser of Series J Notes from such holder, the information (“Rule 144A Information”) required by Rule 144A(d)(4) under the Act; provided, however, that the Company’s obligations under this Section 5(i) shall terminate upon the earlier of (i) the date the Exchange Offer is concluded and the exchange of the Exchange Securities for offering the Securities tendered therein is consummated or (ii) the date the Shelf Registration Statement is declared effective by the Commission; provided, further, that, notwithstanding the foregoing provisions, the Company shall be obligated to deliver, upon request, any information required by Rule 144A(d)(4) under the Act to prospective purchasers of the Securities during any period during which, pursuant to the Registration Rights Agreement, the Shelf Registration Statement is required to be effective, but such effectiveness has been suspended or revoked for any reason.
(j) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all costs, expenses, fees and taxes in connection with or incident to (i) the printing, processing, filing and distribution of the Offering Memorandum and all amendments or supplements thereto (but not including, however, legal fees and expenses of your counsel incurred in connection therewith), including such copies as may be reasonably requested by you, (ii) the issuance, transfer and delivery of the Securities to you and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of such the jurisdictions as referred to in paragraph 5(e) above (including, in each case, any filing fees and fees and expenses of counsel to the Initial Purchasers may request and to comply with such laws so as to permit incurred in connection therewith), (iv) the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution rating of the Notes; provided that Securities by investment rating agencies, (v) the approval of the Securities by DTC for “book-entry” transfer, (vi) the performance by each of the Company and the Guarantors of its other obligations under this Agreement, including (without limitation) the fees of the Trustee, the cost of its personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses and taxes incident to the sale and delivery of the Securities to you (but not including, however, legal fees and expenses of your counsel incurred in connection therewith therewith) and (vii) all expenses and listing fees in connection with the Company or any application for inclusion of the Guarantors shall not be required to Securities in the PORTAL market (i“PORTAL”) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualifyof the National Association of Securities Dealers, Inc. (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject“NASD”).
(gk) For a It will use its best efforts to effect the inclusion of the Securities in PORTAL and to maintain such inclusion for so long as the Securities are outstanding.
(l) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S of the Act (“Regulation S”) the Company will not register any transfer of such Securities not made in accordance with the provisions of Regulation S.
(m) During the period commencing beginning on the date hereof and ending on continuing to and including the 60th day after the date of the Offering CircularClosing Date, the Company and the Guarantors agree it will not to, directly or indirectly, (i) offer for saleoffer, sell, contract to sell or otherwise transfer or dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesSecurities (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers, which consent shall not be unreasonably withheld.
(hn) The Company and It will use the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth Securities in the Pricing Disclosure Package and manner described in the Offering Circular Memorandum under the caption “Use of Proceeds.”
(io) The CompanyIt will not claim voluntarily, and to actively resist any attempts to claim, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price benefit of any security usury laws against the holders of the Company or the Guarantors in connection with the offering of the any Notes.
(jp) The Company and [intentionally omitted]
(q) It will comply with all of its agreements set forth in the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTCRegistration Rights Agreement.
(kr) Until the second anniversary Each of the Closing Date, Guarantors and the Company will execute and the Guarantors will notdeliver, file and record all instruments and documents, and will not permit any of their respective affiliates do all such acts and other things as are necessary to subject the Collateral (as defined in Rule 144 under the Securities ActIndenture) to, resell any to the security interests intended to be created by the Pledge and Security Agreement (as defined in the Indenture) in favor of the Pledgee (as defined in the Pledge and Security Agreement) for the benefit of the holders of the Notes that have been acquired by any of them, except for Notes purchased by and as are reasonably necessary or advisable to perfect the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Actsecurity interests intended to be created thereby.
(ls) The Company It will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Series J Notes and the Guarantors agree Guarantees.
(t) It will 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 Series J Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series J Notes under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesAct.
(mu) In connection with any offer or sale of the NotesIt will use its best efforts to continue to be classified and treated as a partnership for Federal income tax purposes for its taxable year ending December 31, the Company 2003 and the Guarantors will not engage, continue to be so classified and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfertreated thereafter.
(ov) The Company It shall treat the Securities as indebtedness for tax purposes and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notesshall not take any position inconsistent therewith.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of Neither the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to The Company will promptly take such action actions as the Initial Purchasers may may, from time to time, reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company (other than the filing of a universal shelf registration statement on Form S-3 but no sales thereunder), or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays, on behalf of the Initial Purchasers. For the avoidance of doubt, nothing contained in this Section 5(g) shall prohibit or in any way restrict, or be deemed to prohibit or in any way restrict, the issuance of the Notes pursuant to this Agreement, the issuance of any Additional Notes of the same series in accordance with the terms of the Indenture or the New Senior Secured Credit Facilities (as defined in the Pricing Disclosure Package and the Offering Memorandum).
(h) The So long as any of the Notes are outstanding, the Company and the Guarantors will, at their expense, furnish to the Initial Purchasers, and, upon request, furnish to the holders of the Notes and prospective purchasers of the Notes, the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates (including, prior to the Spin-Off, DTE Energy and its subsidiaries) will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing DateThe Company, the Company Guarantors and their respective affiliates (including, prior to the Guarantors Spin-Off, DTE Energy and its subsidiaries) will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale of the Notes, the Company and Company, the Guarantors and any of their respective affiliates (including DTE Energy and its subsidiaries) will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation SS under the Securities Act, and to comply with the offering restrictions requirement of Regulation S.S of the Securities Act.
(no) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform take all things actions that are (i) required or necessary to be done and performed by them under this Agreement by them prior to the Closing Date, and (ii) required or necessary to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers you as follows:
(a) The Company and To advise you promptly and, if requested by any of the Guarantors will furnish to the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved issuance by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company state securities commission of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q stop order suspending the qualification or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each exemption from qualification of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes 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) of the Initial Purchasers to Eligible Purchasers, happening of any event occurs or information becomes known that, in the judgment of the Company or that makes any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary 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 were are made, not misleading. The Company and the Guarantors shall use their reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Notes 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 Notes under any state securities or Blue Sky laws, the Company and the Guarantors shall use their 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. The Company and the Guarantors consent 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.
(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 after being furnished a copy thereof. The Company and the Guarantors 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.
(d) If, after the date hereof and prior to consummation of any Exempt Resales, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of your counsel, it becomes necessary to amend or supplement the Offering Memorandum in order to made 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 or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company Offering Memorandum so that statements therein as so amended or any Guarantor supplemented will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements thereinnot, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereof, or so that the Company Offering Memorandum will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply with applicable law.
(fe) Promptly from time to time to take such action as To cooperate with you and your counsel in connection with the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may reasonably request and to comply with continue such laws qualification in effect so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution of the NotesExempt Resales; provided provided, however, that in connection therewith neither the Company or nor any of the Guarantors 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, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualifythe preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto, (ii) file a general consent to service the preparation (including, without limitation, word processing and duplication costs) and delivery of process this Agreement and the other Company Documents and Guarantor Documents and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in any such jurisdictionconnection herewith and with the Exempt Resales, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof issuance and ending on the 60th day after the date of the Offering Circular, delivery by the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the CompanyDebt Securities, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesregistration, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.qualification or
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the GuarantorsGuarantors agree, jointly on a joint and severallyseveral basis, agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Preliminary Offering Circular as may then be amended Memorandum and the Offering Memorandum and any amendments or supplemented supplements thereto as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum without the prior consent of which the Initial Purchasers shall Purchasers, which consent will not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringbe unreasonably withheld.
(c) The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes Securities are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company and the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchasers and by all dealers to whom Notes Securities may be sold, in connection with the offering and sale of the NotesSecurities.
(d) If, at any time prior to completion of the distribution of the Notes Securities by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, that in the judgment of the Company or Company, any of the Guarantors Guarantor or in the reasonable opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, Memorandum does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of The Company and the Company Guarantors shall cause the Securities and Exchange Securities to be secured on or any Guarantor will make any offer prior to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeClosing Date by perfected first priority liens and perfected second priority liens, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs respectively (except as a result of which such Free Writing Offering Document conflicts with the information provided in the Preliminary Offering Circular, Indentures and the Pricing Disclosure Package or Collateral Documents) on the Collateral to the extent and in the manner provided for in the Indentures and the Collateral Documents and as described in the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissionMemorandum.
(f) Promptly from time to time to take such action as The Company and the Guarantors will cooperate with the Initial Purchasers may reasonably request to qualify and with their counsel in connection with the Notes qualification of the Securities for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request reasonably designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided that in connection therewith (i) the Company or any of and the Guarantors shall in no event be required to continue in effect any such qualification for a period of more than 180 days after the Closing Date, (ii) the Company and the Guarantors will not be required to (i) qualify as a foreign corporations in any jurisdiction in which they would not otherwise be required corporation or to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or state and (iii) the Company and the Guarantors will not be required to subject themselves to taxation (other than any nominal amount) in any such jurisdiction in which they would if not otherwise be so subject.
(g) For So long as any of the Securities are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) unless publicly available, a period commencing copy of each report of the Company or any Guarantor mailed to the Collateral Agent, the stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and the Guarantors and their subsidiaries as the Initial Purchasers may reasonably request.
(h) If this Agreement terminates or is terminated after execution and delivery pursuant to any provisions hereof or if this Agreement is terminated by the Initial Purchasers because of any failure or refusal on the date hereof and ending on the 60th day after the date part of the Offering CircularCompany or any Guarantor to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of one counsel) reasonably incurred by them in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable the Guarantors for such debt securities loss of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise. Notwithstanding the foregoing, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors shall not be required to reimburse the Initial Purchasers if this Agreement is terminated as a result of the conditions in Section 7(u) hereof not being satisfied.
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Except as stated in this Agreement and in the Preliminary Offering Memorandum and the Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates subsidiaries has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Company or Notes. Except as permitted by the Act, neither the Company, the Guarantors nor any of their subsidiaries will distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Portal MarketSM (“PORTAL”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of From and after the Closing Date, so long as any of the Securities are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Company and the Guarantors will furnish to holders of the Securities and prospective purchasers of Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Securities.
(m) During the period of two years after the Closing Date or until such earlier time when all the Securities are registered under the Act, the Company and the Guarantors will not, and will not permit any of their respective affiliates “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Notes Securities that constitute “restricted securities” under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the .
(n) The Company, the Guarantors or any and each of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors subsidiaries agree 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 Notes Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSecurities.
(mo) In connection with any offer or sale the offering of the NotesSecurities, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, until the Initial Purchasers and any of their affiliates, as to whom shall have notified the Company of the completion of the resale of the Securities, to not, and to use its reasonable best efforts to cause its controlled affiliates not to, either alone or with one or more other persons, offer or sell the Guarantors make no covenant) not to engage Securities in the United States (i) in by means of any form of general solicitation or general advertising (within the meaning of Regulation D Rule 502(c) under the Act or (ii) with respect to any such securities sold in reliance on Rule 903 under the Act, by means of the Securities Act) or any public offering directed selling effort within the meaning of Section 4(a)(2) Rule 902 or otherwise in violation of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning offering restriction requirements of Regulation S, and to comply with S under the offering restrictions requirement of Regulation S.Act.
(np) The Company and the Guarantors agree to comply with all terms and conditions each of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the NotesSecurities.
(q) Neither the Company nor any of the Guarantors will be or become an “investment company” or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
Appears in 1 contract
Samples: Purchase Agreement (Texas Unwired)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers several Underwriters as follows:
(a) The Company If, at the time this Agreement is executed and delivered, it is necessary for the Guarantors will furnish Registration Statement or a post-effective amendment thereto to be declared effective before the Initial Purchasers, without charge, within one business day offering of the date of Notes may commence, the Offering CircularCompany will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such number of copies of advice in writing, when the Offering Circular as may then be amended Registration Statement or supplemented as they may reasonably requestsuch post-effective amendment has become effective.
(b) The Company and the Guarantors will prepare the Offering Circular advise you promptly and, if requested by you, will confirm such advice in a form approved writing: (i) of any request by the Initial Purchasers Commission for amendment of or a supplement to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or otherwise), business, prospects, properties, net worth or results of operations, or of the happening of any event, including the filing of any information, documents or reports pursuant to the Exchange Act, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the Rules and Regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) three signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) three copies of the exhibits to the Incorporated Documents.
(d) So long as, in the opinion of counsel for the Underwriters, a Prospectus is required to be delivered in connection with sales by any Underwriter or dealer, the Company will not (i) file any amendment to the Registration Statement, make any amendment or supplement to the Pricing Disclosure Package Prospectus or to the Offering Circular file any document which, upon filing becomes an Incorporated Document, of which the Initial Purchasers you shall not previously have been advised or to which they you shall reasonably object after being so advised providedor (ii) file any information, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q documents or Current Report on Form 8-K with respect to matters unrelated reports pursuant to the Notes Exchange Act without delivering a copy of such information, documents or reports to the offeringUnderwriters prior to such filing.
(ce) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have reasonably requested, copies of the Prepricing Prospectus. The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the provisions of the Act and with the securities or Blue Sky blue sky laws of the jurisdictions in which the Notes are offered offered, by the Initial Purchasers Underwriters and by dealers, prior to the date of the Prospectus, of the Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto), in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered, by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes.
(d) If, at any Notes and for such period of time prior to completion of thereafter as the distribution of the Notes Prospectus is required by the Initial Purchasers Act to Eligible Purchasers, be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event occurs or information becomes known that, shall occur that in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should Underwriters is required to be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, Prospectus (as then amended or supplemented, does not include any untrue statement of material fact ) or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package Prospectus (or to file under the Offering Circular in order Exchange Act any document which, upon filing, becomes an Incorporated Document) to comply with the Act or any other law, the Company and the Guarantors will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment theretothereto or file an Incorporated Document, and will expeditiously furnish to the Initial Purchasers Underwriters and dealers a reasonable number of copies thereof.
(e) None of . In the event that the Company and the Underwriters agree that the Prospectus should be amended or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circularsupplemented, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative andCompany, if requested by the Representativeyou, will prepare and furnish without charge promptly issue a press release announcing or disclosing the matters to each Initial Purchaser a Free Writing Offering Document be covered by the proposed amendment or other document which will correct such conflict, statement or omissionsupplement.
(fg) Promptly from time to time to take such action as The Company will cooperate with you and with counsel for the Initial Purchasers may reasonably request to qualify Underwriters in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or Blue Sky blue sky laws of such jurisdictions as the Initial Purchasers you may request reasonably designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesregistration or qualification; provided that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any such jurisdiction, jurisdiction where it is not now so subject or (iii) subject themselves itself to taxation in any jurisdiction in which they would it is not otherwise be now subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will make generally available to their security holders an earnings statement of the Company and the Guarantors, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than fifteen months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to you (i) as soon as available, a copy of each report of the Company and the Guarantors mailed to stockholders or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or any of the Guarantors as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors, jointly and severally, agree to reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and Prospectus.
(l) If Rule 430A of the Offering Circular Act is employed, the Company will timely file the Prospectus in the proper manner pursuant to Rule 424(b) under the caption “Use Act and will advise you of Proceedsthe time and manner of such filing.”
(im) The Company, Company or the Guarantors and their respective affiliates will not without the prior consent of Salomon Brothers Inc on behalf of the Underwriters prior to the expiration of 150 days after the date of the Prospectus directly or indirectly issue, offer to sell, sell, grant any option for the sale of, or otherwise dispose of any debt securities (other than (a) any debt under the Company's existing bank credit agreement or (b) the Notes).
(n) Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, neither the Company nor any Guarantor has taken, nor will it take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Notes to facilitate the sale or the Guarantors in connection with the offering resale of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Sinclair Broadcast Group Inc)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree covenants and agrees with each of the Initial Purchasers as followsPurchaser that:
(a) The Company and the Guarantors will furnish to shall advise the Initial PurchasersPurchaser promptly and, without chargeif requested by the Initial Purchaser, within one business day confirm such advice in writing, upon the Company or any Guarantor becoming aware (i) of the date issuance by any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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) of the happening of any event that makes any statement of a material fact made in the Disclosure Package or the Offering Circular, such number Memorandum untrue or that requires the making of copies any additions to or changes in the Disclosure Package or the Offering Memorandum in order to make the Disclosure Package or the Offering Memorandum not misleading in the light of the Offering Circular as may then be amended circumstances existing at the time it is delivered to an Eligible Purchaser. The Company and the Guarantors shall use their respective commercially reasonable efforts to prevent the issuance of any stop order or supplemented as they may reasonably requestorder suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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 from qualification of any Notes or the related Guarantees under any state securities or blue sky laws, the Company and the Guarantors shall use their respective commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Company and the Guarantors will prepare shall, without charge, during the Offering Circular period referred to in a form approved paragraph (c) below, provide to the Initial Purchaser and to counsel to the Initial Purchaser, and to those persons identified by the Initial Purchasers and will not make any amendment or supplement Purchaser to the Pricing Disclosure Package Company as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, including all documents incorporated therein by reference, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. The Company and the Guarantors consent to the use of the Preliminary Offering Circular of which Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers shall Purchaser in connection with Exempt Resales. The Initial Purchaser may not previously have been advised use any written materials other than the Preliminary Offering Memorandum, the Offering Memorandum, the Free Writing Offering Document and one or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated more term sheets relating to the Notes or the offeringSecurities containing customary information and conveyed to purchasers of Securities, unless such material would not violate applicable laws.
(c) The Neither the Company and each of nor any Guarantor will amend or supplement the Guarantors consents to the use of the Pricing Disclosure Package and Preliminary Offering Memorandum or the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company Memorandum or any of the Guarantors amendment or supplement thereto during such period as, in the opinion of counsel for the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchaser for so that long as any Additional Notes are outstanding unless the Pricing Disclosure Package Initial Purchaser shall previously have been advised thereof and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall not have given its consent. The Company and the Guarantors shall promptly, upon the request of the Initial Purchaser or counsel to the Initial Purchaser, make any amendment or supplement to the Preliminary Offering Memorandum or the Offering CircularMemorandum that may be necessary or advisable in connection with such Exempt Resales or such market making activities.
(d) If, during the period referred to in 6(c) above, any event shall occur as a result of which, it is necessary or advisable, in the opinion of counsel for the Initial Purchaser, to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum in order to make such Preliminary Offering Memorandum or Offering Memorandum not materially misleading in the light of the circumstances existing at the time it is delivered to an Eligible Purchaser, or if for any other reason it shall be necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable laws, rules or regulations, the Company and the Guarantors shall (subject to Section 6(c) hereof) forthwith amend or supplement such Preliminary Offering Memorandum or Offering Memorandum at its own expense so that, as then so amended or supplemented, does such Preliminary Offering Memorandum or Offering Memorandum will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereintherein not misleading or so that such Preliminary Offering Memorandum or Offering Memorandum will comply with all applicable laws, rules or regulations. The Company and the Guarantors shall supply any amendment or supplemented Offering Memorandum to the Initial Purchaser in such quantities as the light Initial Purchaser may reasonably request. From the time the Company notifies the Initial Purchaser that any such amendment or modification is necessary until the amendment or modification is made, the Initial Purchaser shall cease use of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular Memorandum, as applicable.
(e) The Company and the Guarantors shall reasonably cooperate with the Initial Purchaser and counsel for the Initial Purchaser in order connection with the qualification or registration of the Additional Notes and the Guarantees thereof for offering and sale under the securities or blue sky laws of such jurisdictions as the Initial Purchaser may designate and shall continue such qualifications in effect for as long as may be necessary to comply complete the Exempt Resales, but in no event longer than 365 days from the Closing Date; provided, however, that in connection therewith neither the Company nor any Guarantor shall be required to qualify as a foreign corporation where it is not now so qualified or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales.
(f) The Company shall apply the net proceeds from the sale of the Additional Notes in the manner set forth under “Use of Proceeds” in the Disclosure Package and the Offering Memorandum.
(g) (intentionally omitted).
(h) None of the Company, the Guarantors or any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) will sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that could be integrated with the sale of the Additional Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchaser or the Eligible Purchasers of the Additional Notes or to take any lawother action that would result in the Exempt Resales not being exempt from registration under the Securities Act.
(i) For so long as any of the Notes remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act and are not able to be sold in their entirety under Rule 144 under the Securities Act (or any successor provision), for the benefit of holders from time to time of Additional Notes, the Company will furnish at its expense, upon request, to any holder or beneficial owner of Additional Notes and prospective purchasers of the Additional Notes, information (the “Additional Issuer Information”) specified in Rule 144A(d)(4) under the Securities Act, unless the Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Company and the Guarantors shall use all commercially reasonable efforts to (i) permit the Notes to be included for quotation on The PORTALSM Market and (ii) permit the Notes to be eligible for clearance and settlement through DTC.
(k) During any period that they are not subject to the reporting requirements of the Exchange Act, but in no event longer than two years from the Closing Date, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish shall deliver without charge to the Initial Purchasers Purchaser (i) as soon as available, copies of each report and dealers a reasonable number other communication (financial or otherwise) of copies thereof.
(e) None the Company mailed to the Trustee of the holders of the Notes, stockholders or any national securities exchange on which any class of securities of the Company or any Guarantor may be listed (including without limitation, press releases) other than materials filed with the Commission or posted to ixxxxxxxxx.xxx and (ii) from time to time such other information concerning Parent and the Subsidiaries as the Initial Purchaser may reasonably request.
(l) The Company and the Guarantors shall not take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security of the Company or any Guarantor to facilitate the sale or resale of the Notes, or take any action prohibited by Regulation M under the Exchange Act, in connection with the distribution of the Securities and the Exchange Securities contemplated hereby. Except as permitted by the Securities Act, neither the Company nor any Guarantor will make distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum or (iii) other offering material in connection with the offering and sale of the Securities.
(m) For so long as the Notes constitute “restricted” securities within the meaning of Rule 144(a)(3) under the Securities Act, the Company and the Guarantors shall not, and shall not permit any Subsidiary to, solicit any offer to sell buy or solicitation of an offer to buy sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(n) During the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchaser, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Securities or the Exchange Securities that would constitute a Free Writing Offering Document “restricted securities” under Rule 144 that have been reacquired by any of them.
(o) Prior to the Closing Date, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to issue any press release or other communications, directly or indirectly, or hold any press conference with respect to the issuance of the Additional Notes, Parent or any Subsidiary, the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of Parent or any Subsidiary, without the prior consent of the RepresentativeInitial Purchaser, which such consent shall not to be unreasonably withheld or delayed. If .
(p) Without the prior consent of the Initial Purchaser, which consent may not be unreasonably withheld, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to make any offer relating to the Additional Notes that would constitute a “free writing prospectus” (if the offering of the Notes was made pursuant to a registered offering under the Securities Act) as defined in Rule 405 under the Securities Act (a “Free Writing Offering Document”); any such Free Writing Offering Document the use of which has been consented to by the Initial Purchaser is listed on Schedule III hereto; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts would conflict with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular, includes would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give prompt notice thereof to the Initial Purchasers through the Representative Purchaser and, if requested by the RepresentativeInitial Purchaser, will prepare and furnish without charge to each the Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers Underwriters as follows:
(a) To file the Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the date of determination of the offering price of the Securities or, if applicable, such earlier time as may be required by Rule 424(b).
(b) To advise the Representatives promptly and, if requested by the Representatives, 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 the Notes for offering or sale in any jurisdiction designated by the Representatives pursuant to Section 3(h) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose, and (ii) of the happening of any event during the period referred to in Section 3(f) below that makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasers, without charge, within one business day issuance of any stop order or order suspending the qualification or exemption of the date Notes under any state securities or Blue Sky laws 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 the Offering CircularNotes under any state securities or Blue Sky laws, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare shall use their best efforts to obtain the Offering Circular in a form approved by withdrawal or lifting of such order at the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringearliest possible time.
(c) To furnish the Underwriters and those persons identified by the Underwriters to the Company, as many copies of the Prospectus, and any amendments or supplements thereto, as the Underwriters may from time to time reasonably request for the time period specified in Section 3(f); in case any Underwriter is required to deliver a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act in connection with the sale of the Notes, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act. The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package Prospectus, and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and by all dealers to whom Notes may be sold, Underwriters in connection with the offering and sale of the Notes.
(d) If, at If it is necessary for any time prior post-effective amendment to completion the Registration Statement to be declared effective before the offering of the distribution Notes may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and the Company will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment to the Registration Statement has become effective.
(e) To advise you promptly and, if requested by you, confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible.
(f) During such period as a prospectus is required to be delivered under the Act in connection with the offering and sale of the Notes by the Initial Purchasers Underwriters, (i) to Eligible Purchasersadvise you promptly and, if requested by you, to confirm such advice in writing, of any event occurs proposal to amend or information becomes known thatsupplement the Registration Statement or the Prospectus, including by filing any documents that would be incorporated therein by reference, and to provide you and Underwriters' counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which you shall reasonably object in writing and (ii) to prepare promptly upon the judgment reasonable request of the Company or any of the Guarantors Representatives, any amendment or supplement to the Registration Statement or the Prospectus which in the reasonable opinion of the counsel for the Initial PurchasersUnderwriters is believed to be necessary under the Act.
(g) To advise you promptly, should be set forth during the period referred to in Section 3(f) above, if any event shall occur or condition shall exist as a result of which, it becomes necessary to amend or supplement the Pricing Disclosure Package Registration Statement or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or or, if it is necessary to amend or supplement or amend the Pricing Disclosure Package Registration Statement or the Offering Circular in order Prospectus to comply with any lawthe Act, and forthwith to prepare and file with the Company and the Guarantors will forthwith prepare Commission an appropriate amendment or supplement to such Registration Statement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes Prospectus so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Registration Statement or Prospectus will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through Underwriters and such other persons as the Representative and, if requested by Underwriters may designate such number of copies thereof as the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissionUnderwriters may reasonably request.
(fh) Promptly from time Prior to time the sale of the Notes as contemplated hereby, to take such action as cooperate with the Initial Purchasers may reasonably request Underwriters and counsel to qualify the Underwriters in connection with the registration or qualification of the Notes for offering offer and sale to the Underwriters under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Representatives may request and to comply with continue such laws registration or qualification in effect so long as required and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of Company nor the Notes; provided that Guarantors shall be required in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating to the offering and sale of the Notes, or (iii) subject themselves to taxation in any jurisdiction in which they would it is not otherwise be now so subject.
(gi) For a period commencing on the date hereof Subject to Section 3(f) hereof, to file promptly all reports and ending on the 60th day after the date of the Offering Circular, any definitive proxy or information statement required to be filed by the Company and the Guarantors agree with the Commission in order to comply with 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 Notes.
(j) If necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act prior to 10 a.m. New York City time on the business day following the date of this Agreement.
(k) To make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(l) If requested by you, to furnish to you one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters.
(m) To the extent not tootherwise available on EDGAR (as defined in Regulation S-T), directly or indirectlyto furnish to you promptly and, xxxn request, to each of the other Underwriters (i) offer for salea period of five years from the date of this Agreement (x) copies of any reports or other communications which the Company or the Guarantors shall send to their stockholders or shall from time to time publish or publicly disseminate, sell(y) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or otherwise dispose such other similar forms as may be designated by the Commission and (z) copies of (documents or enter into reports filed with any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by national securities exchange on which any person at any time in the future of) any debt securities class of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Guarantors is listed and (ii) enter into any swap or other derivatives transaction that transfers to another, for the period referenced in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (iiSection 3(f) above is to be settled by delivery of debt securities of the Company, such other information as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of you may reasonably request regarding the Company substantially similar to and the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial PurchasersGuarantors.
(hn) The Company and the Guarantors will To apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description manner set forth in the Pricing Disclosure Package and the Offering Circular under the caption “"Use of Proceeds" in the Prospectus.”
(o) 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 incident to the performance of the obligations of the Company and the Guarantors under this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the sale and delivery of the Notes to the Underwriters and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement, the Preliminary Prospectus, the Prospectus, and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Underwriters and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Notes to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Notes, (iv) all expenses in connection with the registration or qualification of the Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Blue Sky memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Notes and the Guarantees, (vi) the fees and expenses of the Trustee and the reasonable fees and disbursements of the Trustee's counsel in connection with the Indenture, the Notes and the Guarantees, (vii) the costs and charges of any transfer agent, paying agent, registrar and/or depositary (including DTC), (viii) any fees charged by rating agencies for the rating of the Notes, (ix) the fees and expenses of the QIU in connection with the offering of the Notes.
Notes and (jx) The Company all other costs and expenses incident to the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary performance of the Closing Date, obligations of the Company and the Guarantors will nothereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as specifically provided in this Section, and Sections 5 and 9 hereof, the Underwriters will not permit any pay all of their respective affiliates (as defined in Rule 144 under own costs and expenses, including the Securities Act) tofees of their counsel, resell transfer taxes on resale of any of the Notes that have been acquired by them and any of them, except for Notes purchased by the Company, the Guarantors or advertising expenses connected with any of their respective affiliates and resold in a transaction registered under the Securities Actoffers they may make.
(lp) The Company and To obtain the Guarantors agree not to sell, offer approval of DTC 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers "book entry" transfer of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement all of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(oq) The 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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes and the Guarantors will Guarantees (other than (i) the Notes and the Guarantees and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Representatives.
(r) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guarantees.
(s) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Allied Waste Industries Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of Neither the Company or any Guarantor nor the Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into such debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary Each of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) ), or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation SS under the Securities Act, and to comply with the offering restrictions requirement of Regulation S.S of the Securities Act.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Circular, such number of copies of Circular or the Offering Circular as may then be amended untrue or supplemented as they may reasonably requestthat requires any additions to or changes in the Preliminary Offering Circular or the Offering Circular in order to make the statements therein not misleading. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws 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 Series A Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Company To furnish the Initial Purchasers and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Circular and will not the Offering Circular, and any amendments or supplements thereto, as 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, the Company consents to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to make any amendment or supplement to the Pricing Disclosure Package Offering Circular prior to the Closing Date or during the period referred to in Section 5(d) below unless the Initial Purchasers shall previously have been advised of, and shall not have reasonably objected to, such amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished a copy of such amendment or supplement. The Company shall prepare promptly upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Circular which may be necessary or advisable in connection with such Exempt Resales or any market-making activities of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Series A Notes.
(d) If, at in connection with any time Exempt Resales or market making transactions after the date of this Agreement and prior to completion the consummation of the distribution of the Notes by the Initial Purchasers to Eligible PurchasersExchange Offer, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Circular is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Circular will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Series A Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Circular, the Offering Circular or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) Whether or not required by the rules and regulations of the Commission, so long as any Notes are outstanding, the Company will furnish to the Trustee and the holders of Notes (i) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms that describe the financial condition and results of the Company and its consolidated subsidiaries (showing in reasonable detail, either on the face of the financial statements or in the footnotes thereto and in "Management's Discussion and Analysis of Financial Condition and Results of Operations," the financial condition and results of operations of the Company and its Restricted Subsidiaries (as defined in the Indenture) separate from the financial condition and results of operations of the Unrestricted Subsidiaries (as defined in the Indenture) of the Company) and, with respect to the annual information only, a report thereon by the Company's certified independent accountants and (ii) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports. In addition, whether or not required by the rules and regulations of the Commission, the Company will file a copy of all such information and reports with the Commission for public availability (unless the Commission will not accept such a filing) and make such information available to securities analysts and prospective investors upon request.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to furnish to any holder of Series A Notes, and prospective investors designated by the holders of the Series A Notes, upon their request, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Guarantors Company and their respective affiliates will not takethe Guarantors, directly or indirectly, any action designed counsel to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security Initial Purchasers and accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers and pursuant to Exempt Resales, and all other fees or expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
Preliminary Offering Circular, the Offering Circular and all amendments and supplements to any of the foregoing (mincluding financial statements) In specified in Section 5(b) and 5(c) prior to or during the period specified in Section 5(d), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by it in the quantities specified herein, (ii) other out-of-pocket expenses incurred by the Initial Purchasers in connection with their performance hereunder (including, without limitation, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures, subject in each case to receipt of appropriate supporting documentation), (iii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iv) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (v) all expenses in connection with the registration or qualification of the Series A Notes and the Subsidiary Guarantees for offer and sale under the securities or sale 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 and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (vi) the cost of printing certificates representing the Series A Notes and the Subsidiary Guarantees, (vii) all expenses and listing fees in connection with the application for quotation of the Series A Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (viii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Notes, the Subsidiary Guarantees and the Security 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 Company and the Guarantors will not engage, and will cause their respective affiliates Exchange Offer and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliatesRegistration Statement, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Registration Rights Agreement, and (xii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to and the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notesother Operative Documents for which provision is not otherwise made in this Section.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the -------------------------------------------- Guarantors, jointly and severally, covenant and agree with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Notes or Subsidiary Guarantees 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) of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company happening of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each event that makes any statement of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, a material fact made in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular so Memorandum untrue or that requires the Pricing Disclosure Package making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. The Company and the Guarantors shall use their reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes or Subsidiary Guarantees under any state securities or Blue Sky laws and, if at any time any state securities commission or if it is necessary to supplement other regulatory authority shall issue an order suspending the qualification or amend the Pricing Disclosure Package exemption of any Notes or the Offering Circular in order to comply with Subsidiary Guarantees under any lawstate securities or Blue Sky laws, the Company and the Guarantors will forthwith prepare an appropriate supplement shall use their reasonable best efforts to obtain the withdrawal or amendment lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and will expeditiously furnish the Guarantors consent to the use of the Preliminary Offering Memorandum (until the requested number of copies of the Offering Memorandum are furnished to the Initial Purchasers and dealers a reasonable number of copies thereofto those persons identified by the Initial Purchasers) and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) None Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company and the Guarantors shall promptly prepare, upon the Initial Purchasers' 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.
(d) If, after the date hereof and prior to consummation of any Exempt Resale, any event shall occur as a result of which, in the judgment of the Company or any Guarantor will make any offer in the reasonable opinion of counsel for the Company or counsel for the Initial Purchasers, it becomes necessary or advisable to sell amend or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in supplement the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances then prevailingwhen such Preliminary Offering Memorandum or Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleadingmisleading in any material respect, as promptly as practicable after becoming aware thereofor if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, the Company will give notice thereof (i) to notify the Initial Purchasers through and (ii) forthwith to prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or Offering Memorandum so that the Representative andstatements therein as so amended or supplemented will not, if requested by in the Representativelight of the circumstances when it is so delivered, be misleading, or so that such Preliminary Offering Memorandum or Offering Memorandum will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply with applicable law.
(fe) Promptly from time to time to take such action as To cooperate with the Initial Purchasers may reasonably request to qualify and counsel for the Initial Purchasers in connection with the qualification or registration of the Series A Notes for offering and sale Series A Subsidiary Guarantees under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with continue such laws qualification in effect so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete required for the distribution Exempt Resales; provided, however, that none of the Notes; provided that Company or the Guarantors shall be required in connection therewith the Company to register or any of the Guarantors shall not be required to (i) qualify as a foreign corporations in corporation where it is not now so qualified or to take any jurisdiction in which they action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any such jurisdictionjurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, or to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company and the Guarantors hereunder, including, without limitation, in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the issuance, transfer and delivery of the Series A Notes and the Series A Subsidiary Guarantees to the Initial Purchasers, (iii) subject themselves to taxation the qualification or registration of the Series A Notes and the Series A Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and disbursements of counsel for the Initial Purchasers relating thereto), (iv) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in any jurisdiction connection with Exempt Resales, (v) the preparation of certificates for the Series A Notes and the Series A Subsidiary Guarantees (including, without limitation, printing and engraving thereof), (vi) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and accountants, (vii) all fees and expenses (including fees and expenses of counsel) of the Company and the Guarantors in which they would not otherwise be subjectconnection with the approval of the Notes (including the Subsidiary Guarantees) by DTC for "book-entry" transfer, (viii) rating the Notes (including the Subsidiary Guarantees) by rating agencies, (ix) the reasonable fees and expenses of the Trustee and its counsel, (x) the performance by the Company of their other obligations under this Agreement and the other Operative Documents and (xi) "roadshow" travel and other expenses incurred by the Company in connection with the marketing and sale of the Series A Notes (and the Series A Subsidiary Guarantees).
(g) For a To use the proceeds from the sale of the Series A Notes (and the Series A Subsidiary Guarantees) in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) Not to claim voluntarily, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Notes or Subsidiary Guarantees.
(i) To do and perform all things required to be done and performed under this Agreement by the Company and the Guarantors prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Series A Notes and the Series A Guarantees.
(j) During the period commencing beginning on the date hereof and ending on continuing to and including the 60th day after the date of the Offering CircularClosing Date, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for saleto offer, sell, contract to sell or otherwise transfer or dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesthe Subsidiary Guarantees (other than (i) the Notes and the Subsidiary Guarantees and (ii) commercial paper issued in the ordinary course of business), in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Series A Notes (and the Series A Subsidiary Guarantees) in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSeries A Notes (and the Series A Subsidiary Guarantees) or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(l) For so long as any of the Series A Notes remain outstanding and during any period in which the Company and the Guarantors are 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 holder or beneficial owner ------------ of Notes and Subsidiary Guarantees in connection with any sale thereof and any prospective purchaser of such Notes and Subsidiary Guarantees from such holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act.
(m) In connection with any offer or sale of To cause the NotesExchange Offer to be made in the appropriate form to permit registered Series B Notes and Series B Subsidiary Guarantees to be offered in exchange for the Series A Notes and Series A Subsidiary Guarantees, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation Srespectively, and to comply with all applicable federal and state securities laws in connection with the offering restrictions requirement of Regulation S.Exchange Offer.
(n) The Company and the Guarantors agree to To comply with all terms of their agreements set forth in the Registration Rights Agreement and conditions of the all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes (including the Subsidiary Guarantees) by DTC for “book "book-entry” " transfer.
(o) The To effect the inclusion of the Notes (including the Subsidiary Guarantees) in PORTAL and to obtain approval of the Notes (including the Subsidiary Guarantees) by DTC for "book-entry" transfer.
(p) During a period of five years following the Closing Date, to deliver without charge to the Initial Purchasers, as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other publicly available information that the Company and the Guarantors shall mail or otherwise make available to their public securityholders and (ii) all reports, financial statements and proxy or information statements filed by the Company and the Guarantors with the Commission or any national securities exchange and such other publicly available information concerning the Company, the Guarantors, or any of their subsidiaries, including without limitation, press releases.
(q) Prior to the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared in the ordinary course by the Company, copies of any unaudited interim financial statements for any period subsequent to the periods covered by the financial statements appearing in the Offering Memorandum.
(r) Not to take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Subsidiary Guarantees. Except as permitted by the Act, the Company will not distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes.
(s) To use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the NotesSeries A Notes and the Series A Subsidiary Guarantees.
Appears in 1 contract
Samples: Purchase Agreement (Interep National Radio Sales Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and and, until the completion of the distribution of the Notes (including the distribution of any Additional Notes to the extent the Initial Purchasers exercise their option to purchase any Additional Notes pursuant to Section 3(b)) by the Initial Purchasers, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised advised; provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes and the offering or conversion thereof; provided further, however, that the offeringCompany shall advise the Initial Purchasers in advance of the filing of any such Annual Report, Quarterly Report or Current Report.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously promptly furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes and the Underlying Common Stock for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the NotesNotes and the Underlying Common Stock; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities shares of the Company substantially similar to the Notes Common Stock or securities convertible into or exchangeable for such debt securities shares of Common Stock (other than the Companyshares of Common Stock issued pursuant to employee benefit plans, as applicablequalified stock option plans, other employee compensation plans or non-employee director compensation programs (collectively, “Compensation Plans”) existing on the date hereof and disclosed in the Pricing Disclosure Package or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to such debt securities any shares of the Company Common Stock or securities convertible into or exchangeable for such debt securities shares of Common Stock (other than (1) the issuance of the Notes to be sold hereunder, (2) the issuance of shares of Common Stock upon conversion of the Notes, if applicable, (3) the grant of options and other equity awards pursuant to Compensation Plans existing on the date hereof and disclosed in the Pricing Disclosure Package or the Offering Memorandum or (4) shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock issued by the Company as consideration for any merger or acquisition made by the Company or any of its subsidiaries; provided, however, that the aggregate number of shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock (on an as-converted or as-exercised basis, as the case may be) that the Company may sell or issue or agree to sell or issue pursuant to this clause (4) shall not exceed 5% of the total number of shares of the Company’s Common Stock issued and outstanding immediately following the completion of the transactions contemplated herein; and provided further, that any recipients of such Common Stock or securities convertible into or exchangeable for shares of Common Stock pursuant to this clause (4) shall execute a lock-up agreement substantially in the form of Exhibit B hereto), (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities shares of the CompanyCommon Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes Common Stock or securities convertible, exercisable or exchangeable into debt securities of the Company Common Stock (other than any registration statement on Form S-8), or (iv) publicly announce an offering of disclose the intention to do any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesforegoing, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., Credit Suisse Securities (USA) LLC and X.X. Xxxxxx Securities LLC, on behalf of the Initial Purchasers, and to cause each officer and director of the Company set forth on Schedule VI hereto to furnish to the Representatives, prior to the date of this Agreement, a letter or letters, substantially in the applicable form attached hereto as Exhibit B hereto (the “Lock-Up Agreements”).
(h) Between the date hereof and the Closing Date (both dates included), neither the Company nor the Guarantors will do any act or thing which, had the Firm Notes then been in issue, would result in an adjustment to the conversion price of the Firm Notes.
(i) For so long as any of the Notes or the Underlying Common Stock are outstanding, and unless otherwise available on the Commission’s Electronic Data Gathering and Retrieval System, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes or the Underlying Common Stock and prospective purchasers of the Notes or the Underlying Common Stock the information required by Rule 144A(d)(4) under the Securities Act (if any).
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply in all material respects with all terms and conditions of the agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will use their commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
(q) The Company agrees to reserve and keep available at all times, free of preemptive rights, a sufficient number of Underlying Common Stock to enable the Company to satisfy any obligations to issue Underlying Common Stock upon conversion of the Notes.
(r) Between the date hereof and the Closing Date, the Company will not do or authorize any act that would result in an adjustment of the conversion rate of the Notes.
(s) The Company agrees to use its commercially reasonable efforts to list, subject to notice of issuance, the Underlying Common Stock issuable upon conversion of the Notes on the New York Stock Exchange, and to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a register for the Underlying Common Stock.
Appears in 1 contract
Samples: Purchase Agreement (Jarden Corp)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents agrees:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, of (i) the use issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of the Pricing Disclosure Package and Series A Notes for offering or sale in any jurisdiction, or the Offering Circular in accordance with the securities or Blue Sky laws initiation of the jurisdictions in which the Notes are offered any proceeding for such purpose by the Initial Purchasers Commission or any state securities commission or other regulatory authority, and by all dealers to whom Notes may be sold, in connection with (ii) the offering and sale happening of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or that makes any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary 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 were made, not misleading. The Company and each Guarantor shall use its reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Series A Notes under any state securities or Blue Sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Series A Notes under any state securities or Blue Sky laws, the Company and each Guarantor shall use all commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you, without charge, as many copies of the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. The Company and each Guarantor consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Exempt Resales that are in compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless you shall previously have been advised of, and shall not have reasonably objected to, such amendment or supplement within a reasonable time, but in any event such reasonable time shall not be longer than five days after being furnished a copy of such amendment or supplement. The Company shall reasonably promptly prepare, upon any reasonable request by you, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales. If, in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the consummation of the Exchange Offer, any event shall occur that, in the judgment of the Company or in the judgment of counsel to you, makes any statement of a material fact 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 in the Offering Memorandum, in light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply in all material respects with any lawapplicable laws, the Company shall promptly notify you of such event and the Guarantors will forthwith prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
Offering Memorandum so that (ei) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information statements in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum as amended or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements thereinsupplemented will, in the light of the circumstances then prevailingat the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, as promptly as practicable after becoming aware thereof, be misleading and (ii) the Company Offering Memorandum will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply in all material respects with applicable law.
(fd) Promptly from time to time to take such action as To cooperate with you and your counsel in connection with the Initial Purchasers may reasonably request to qualify qualification of the Series A Notes for offering offer and sale by you and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided (provided, however, that in connection therewith the Company or any of the Guarantors shall not be required obligated to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction in which it is not now so subject or (iii) subject themselves itself to taxation in excess of a nominal amount in any such jurisdiction where it is not then so subject). Subject to the provisions in which the first sentence of this Section 6(d), the Company shall continue such qualification in effect so long as required by law for distribution of the Series A Notes.
(e) Prior to the Closing Date, to furnish to you, as soon as they would not otherwise have been prepared, any internal combined financial statements of the Company that have been prepared by the Company for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(f) To use all commercially reasonable efforts to do and perform all things required to be subjectdone and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Series A Notes.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Series A Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers you or the Eligible Purchasers of the Series A Notes.
(mh) In For a period of 90 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities of the Company in a public or private offering for cash having a maturity of more than one year from the date of issue of such securities, except (i) for the Series B Notes in connection with the Exchange Offer or (ii) with the prior consent of each of the Initial Purchasers, which consent shall not be unreasonably withheld.
(i) During any offer period that the Company is not subject to Section 13 or sale Section 15(d) of the Exchange Act, for the period that is two years after the Closing Date or for so long as necessary to comply with Rule 144A in connection with resales by registered holders or beneficial owners of the Notes, the Company and the Guarantors will not engagewhichever is longer, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not available to engage (i) in any form of general solicitation such registered holder or general advertising (within the meaning of Regulation D beneficial owner of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act Notes in connection with any offer or sale thereof and any prospective purchaser of the Notes and/or from such registered holder or beneficial owner, the information required by Rule 144A(d) (ii4) under the Securities Act (or any successor provision thereto).
(j) To comply with its agreements in any directed selling effort with respect to the Notes within the meaning of Regulation SRegistration Rights Agreement, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(ok) The Company and To use all commercially reasonable efforts to permit the Guarantors will do and perform all things required or necessary Series A Notes to be done designated Private Offerings, Resales and performed Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Series A Notes to be eligible for clearance and settlement through DTC.
(l) To apply the net proceeds from the sale of the Series A Notes being sold by the Company as set forth in the Offering Memorandum under this Agreement by them prior to the caption "Use of Proceeds".
(m) During the period that is two years after the Closing Date, to take such steps as shall be necessary to ensure that the Company does not become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
(n) To not take, directly or indirectly, any action designed to satisfy all conditions precedent or that might reasonably be expected to cause or result in stabilization or manipulation of the Initial Purchasers’ obligations hereunder price of the Notes to purchase facilitate the sale or resale of the Notes. Except as permitted by the Securities Act, the Company and its subsidiaries will not distribute any offering material in connection with the Exempt Resales.
Appears in 1 contract
Samples: Purchase Agreement (Ball Corp)
Agreements of the Company and the Guarantors. The Each of the --------------------------------------------- Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Securities for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Securities under any state securities or Blue Sky laws and, without chargeif 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 Securities under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Securities are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market- making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the Notes sale of all Securities pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Securities for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales in any jurisdiction in which it is not now so subject.
(f) So long as any Securities are outstanding and the Indenture or the Warrant Agreement so requires, (i) to make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as any Securities are outstanding, to furnish to the Initial Purchasers, upon request, as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Securities remain outstanding and during any period in which the Company and the Guarantors agree are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to, directly or indirectlyupon request, make available to any holder of such ------------ Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder, the information ("Rule 144A Information") --------------------- required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
(m) In connection with Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any offer or sale of the Notesforegoing (including financial statements), including the Company mailing and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, delivering of copies thereof to the Initial Purchasers and any of their affiliatespersons designated by it in the quantities specified herein, as (ii) all costs and expenses related to whom the Company transfer and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D delivery of the Securities Actto the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any public offering within other agreements or documents in connection with the meaning offering, purchase, sale or delivery of Section 4(a)(2the Securities, (iv) all expenses in connection with the registration or qualification of the Securities Act in connection with any and the Guarantees for offer and sale under the securities or sale Blue Sky laws of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, several states and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.costs of
Appears in 1 contract
Samples: Purchase Agreement (Ipcs Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, Purchasers without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they it may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Offering Memorandum, or file any Exchange Act Reports after the date hereof and prior to the Offering Circular Closing Date, of which the Initial Purchasers shall not previously have been advised or, with respect to any such amendment or supplement to the Offering Memorandum, to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs shall occur or information becomes known that, that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will will, subject to subsection (b) above, forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in which they where it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, the Guarantors or any of their respective subsidiaries, except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer or (ii) with the prior consent of the Representatives.
(g) So long as applicablethe Notes are outstanding, or sell or grant optionsunless such documents are available to the Initial Purchasers via the Commission's website, rights or warrants XXXXX, to furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with respect the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such debt securities quarter in reasonable detail.
(h) So long as any of the Notes are outstanding, unless such documents are available to the Initial Purchasers via the Commission's website, XXXXX, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as reasonably available, a copy of each report of the Company or securities convertible into any Guarantor mailed to stockholders generally or exchangeable for such debt securities of the Company filed with any stock exchange or regulatory body and (ii) enter into any swap from time to time such other information concerning the Company or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of Guarantors as the Company, whether any such transaction described in clause Initial Purchasers may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (iiotherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) above is to or if this Agreement shall be settled terminated by delivery the Initial Purchasers because of debt securities of any failure or refusal on the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities part of the Company or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree to reimburse the Initial Purchasers for all out-of-pocket expenses (ivincluding reasonable fees and expenses of its counsel) publicly announce an offering of reasonably incurred by it in connection herewith, but without any debt securities further obligation on the part of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent any of the Representative, on behalf Guarantors for loss of the Initial Purchasersprofits or otherwise.
(hj) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ik) The CompanyExcept as stated in this Agreement and in the Offering Memorandum, neither the Guarantors and their respective affiliates Company nor any of its subsidiaries has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Securities Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jl) The Company and the Guarantors will use their all commercially reasonable efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) Market(SM) (the "PORTAL Market(SM)") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market(SM) and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until From and after the second anniversary Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(n) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(o) During the period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes that constitute "restricted securities" under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lp) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(nq) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement in all material respects and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(or) On the Closing Date, the Company will deliver to the Initial Purchasers secretary's certificates reasonably satisfactory to the Initial Purchasers which will include the following documents with respect to the Company and each Guarantor: (i) charter, (ii) by-laws, (iii) other constitutive documents, (iv) resolutions and (v) certificates of good standing and/or qualification to do business as a foreign corporation in such jurisdiction as the Initial Purchasers may reasonably request.
(s) The Company and the Guarantors agree to cause the Exchange Offer to be made on the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Exchange Notes and the Exchange Guarantees to be offered in exchange for the Notes and the Guarantees, respectively, and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(t) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(u) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(v) The Company and the Guarantors will do and perform all things reasonably required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
(w) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv3) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeXxxxxx Brothers Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or the Guarantors as the Initial Purchasers may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated as Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the “PORTAL MarketSM”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(q) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(r) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly Guarantors covenants and severally, agree agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing, of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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. The Company and the Guarantors shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes or the related Guarantees 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 Notes or the related Guarantees under any state securities or Blue Sky laws, the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(bc) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(cd) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Initial Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Initial Notes are offered by the Initial Purchasers and by all dealers to whom Initial Notes may be sold, in connection with the offering and sale of the Initial Notes.
(de) If, at any time prior to completion of the distribution of the Initial Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretothereto or such document, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(ef) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as qualification of the Initial Purchasers may reasonably request to qualify the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Initial Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(g) For So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a period commencing copy of each report of the Company mailed to stockholders generally or filed with any stock exchange, the Commission or any state securities commission and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(h) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 12 hereof) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the date hereof and ending on the 60th day after the date part of the Offering CircularCompany or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks Guarantors for loss of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(hi) The Company and the Guarantors will apply the net proceeds from the sale of the Initial Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ij) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, the Company and the Guarantors and their respective affiliates have not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company or and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of From and after the Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any furnish to holders of the Notes that have been acquired and prospective purchasers of Notes designated by any such holders, upon request of them, except for Notes purchased by the Companysuch holders or such prospective purchasers, the Guarantors information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) None of the Company or any of its affiliates or any other person acting on its or their respective affiliates and resold in a transaction registered behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Initial Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D ("Regulation D") under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Act or (ii) engage in any directed selling efforts within the meaning of Regulation S ("Regulation S") under the Act, and all such persons will comply with the offering restrictions requirements of Regulation S.
(n) The Company and the Guarantors (other than AmeriCredit Financial Services of Canada Ltd., AmeriCredit Service Center Ltd., AmeriCredit NS I Co., and AmeriCredit NS II Co. (collectively, the "Canadian Guarantors") to which such law does not apply) have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(lo) The Company and the Guarantors agree 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 Initial Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Initial Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(np) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(oq) The Company and the Guarantors agree to cause the Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Exchange Notes to be offered in exchange for the Initial Notes, and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(r) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(s) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(t) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Initial Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree covenants and agrees with each of the Initial Purchasers as followsthat:
(a) The Company and the Guarantors will furnish to shall advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day upon the Company or any Guarantor becoming aware (i) of the date issuance by any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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) of the happening of any event that makes any statement of a material fact made in the Disclosure Package or the Offering Circular, such number Memorandum untrue or that requires the making of copies any additions to or changes in the Disclosure Package or the Offering Memorandum in order to make the Disclosure Package or the Offering Memorandum not misleading in the light of the Offering Circular as may then be amended circumstances existing at the time it is delivered to an Eligible Purchaser. The Company and the Guarantors shall use their respective commercially reasonable efforts to prevent the issuance of any stop order or supplemented as they may reasonably requestorder suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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 from qualification of any Notes or the related Guarantees under any state securities or blue sky laws, the Company and the Guarantors shall use their respective commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Company and the Guarantors will prepare shall, without charge, during the Offering Circular period referred to in a form approved paragraph (c) below, provide to the Initial Purchasers and to counsel to the Initial Purchasers, and to those persons identified by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to Company as many copies of the Preliminary Offering Memorandum and the Offering Circular of which Memorandum, including all documents incorporated therein by reference, and any amendments or supplements thereto, as the Initial Purchasers shall not previously have been advised or may reasonably request. The Company and the Guarantors consent to which they shall reasonably object after being so advised providedthe use of the Preliminary Offering Memorandum and the Offering Memorandum, that this clause shall not apply to and any filing amendments and supplements thereto required pursuant hereto, by the Company of Initial Purchasers in connection with Exempt Resales. The Initial Purchasers may not use any Annual Report on Form 10-Kwritten materials other than the Preliminary Offering Memorandum, Quarterly Report on Form 10-Q the Offering Memorandum, the Free Writing Offering Document and one or Current Report on Form 8-K with respect to matters unrelated more term sheets relating to the Notes or the offeringSecurities containing customary information and conveyed to purchasers of Securities, unless such material would not violate applicable laws.
(c) The Neither the Company and each of nor any Guarantor will amend or supplement the Guarantors consents to the use of the Pricing Disclosure Package and Preliminary Offering Memorandum or the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company Memorandum or any of the Guarantors amendment or supplement thereto during such period as, in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchasers for so that long as any Initial Notes are outstanding unless the Pricing Disclosure Package Initial Purchasers shall previously have been advised thereof and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent. The Company and the Guarantors shall promptly, upon the request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendment or supplement to the Preliminary Offering Memorandum or the Offering CircularMemorandum that may be necessary or advisable in connection with such Exempt Resales or such market making activities.
(d) If, during the period referred to in 6(c) above, any event shall occur as a result of which, it is necessary or advisable, in the opinion of counsel for the Initial Purchasers, to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum in order to make such Preliminary Offering Memorandum or Offering Memorandum not materially misleading in the light of the circumstances existing at the time it is delivered to an Eligible Purchaser, or if for any other reason it shall be necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable laws, rules or regulations, the Company and the Guarantors shall (subject to Section 6(c) hereof) forthwith amend or supplement such Preliminary Offering Memorandum or Offering Memorandum at its own expense so that, as then so amended or supplemented, does such Preliminary Offering Memorandum or Offering Memorandum will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereintherein not misleading or so that such Preliminary Offering Memorandum or Offering Memorandum will comply with all applicable laws, rules or regulations. The Company and the Guarantors shall supply any amendment or supplemented Offering Memorandum to the Initial Purchasers in such quantities as the light Initial Purchasers may reasonably request. From the time the Company notifies the Initial Purchasers that any such amendment or modification is necessary until the amendment or modification is made, the Initial Purchasers shall cease use of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular Memorandum, as applicable.
(e) The Company and the Guarantors shall reasonably cooperate with the Initial Purchasers and counsel for the Initial Purchasers in order connection with the qualification or registration of the Initial Notes and the Guarantees thereof for offering and sale under the securities or blue sky laws of such jurisdictions as the Initial Purchasers may designate and shall continue such qualifications in effect for as long as may be necessary to comply complete the Exempt Resales, but in no event longer than 365 days from the Closing Date; provided, however, that in connection therewith neither the Company nor any Guarantor shall be required to qualify as a foreign corporation where it is not now so qualified or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales.
(f) The Company shall apply the net proceeds from the sale of the Initial Notes in the manner set forth under “Use of Proceeds” in the Disclosure Package and the Offering Memorandum.
(g) (intentionally omitted).
(h) None of the Company, the Guarantors or any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) will sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that could be integrated with the sale of the Initial Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Initial Notes or to take any lawother action that would result in the Exempt Resales not being exempt from registration under the Securities Act.
(i) For so long as any of the Notes remain outstanding and are “restricted securities” within the meaning of Rule 144 under the Securities Act and are not able to be sold in their entirety under Rule 144 under the Securities Act (or any successor provision), for the benefit of holders from time to time of Initial Notes, the Company will furnish at its expense, upon request, to any holder or beneficial owner of Initial Notes and prospective purchasers of the Initial Notes, information (the “Additional Issuer Information”) specified in Rule 144A(d)(4) under the Securities Act, unless the Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Company and the Guarantors shall use all commercially reasonable efforts to (i) permit the Notes to be included for quotation on The PORTALSM Market and (ii) permit the Notes to be eligible for clearance and settlement through DTC.
(k) During any period that they are not subject to the reporting requirements of the Exchange Act, but in no event longer than two years from the Closing Date, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish shall deliver without charge to the Initial Purchasers (i) as soon as available, copies of each report and dealers a reasonable number other communication (financial or otherwise) of copies thereof.
(e) None the Company mailed to the Trustee of the holders of the Notes, stockholders or any national securities exchange on which any class of securities of the Company or any Guarantor may be listed (including without limitation, press releases) other than materials filed with the Commission or posted to xxxxxxxxxx.xxx and (ii) from time to time such other information concerning Parent and the Subsidiaries as the Initial Purchasers may reasonably request in writing.
(l) The Company and the Guarantors shall not take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security of the Company or any Guarantor to facilitate the sale or resale of the Notes, or take any action prohibited by Regulation M under the Exchange Act, in connection with the distribution of the Securities and the Exchange Securities contemplated hereby. Except as permitted by the Securities Act, neither the Company nor any Guarantor will make distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum or (iii) other offering material in connection with the offering and sale of the Securities.
(m) For so long as the Notes constitute “restricted” securities within the meaning of Rule 144 under the Securities Act, the Company and the Guarantors shall not, and shall not permit any Subsidiary to, solicit any offer to sell buy or solicitation of an offer to buy sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(n) During the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Securities or the Exchange Securities that would constitute a Free Writing Offering Document “restricted securities” under Rule 144 that have been reacquired by any of them.
(o) Prior to the Closing Date, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to issue any press release or other communications, directly or indirectly, or hold any press conference with respect to the issuance of the Initial Notes, Parent or any Subsidiary, the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of Parent or any Subsidiary, without the prior consent of the RepresentativeInitial Purchasers, which such consent shall not to be unreasonably withheld or delayed. If .
(p) Without the prior consent of the Initial Purchasers, which consent may not be unreasonably withheld, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to make any offer relating to the Initial Notes that would constitute a “free writing prospectus” (if the offering of the Notes was made pursuant to a registered offering under the Securities Act) as defined in Rule 405 under the Securities Act (a “Free Writing Offering Document”); any such Free Writing Offering Document the use of which has been consented to by the Initial Purchasers is listed on Schedule III hereto; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts would conflict with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular, includes would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give prompt notice thereof to the Initial Purchasers through the Representative and, if requested by the RepresentativeInitial Purchasers, will prepare and furnish without charge to each the Initial Purchaser Purchasers a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(fq) Promptly During the period from time to time to take such action as the Initial Purchasers may reasonably request to qualify date hereof through and including the Notes for offering date that is ninety (90) days after the date hereof, the Company and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution each of the Notes; provided that in connection therewith Guarantors will not, without the prior written consent of X.X. Xxxxxx Securities Inc., offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file and having a general consent to service maturity date of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after more than one year from the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon reasonable request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company shall take such actions as it and the Representatives deem appropriate under applicable laws to cause the Notes to be secured by perfected liens on the Notes Collateral (it being understood that the Notes shall be secured by perfected second priority liens on the ABL Collateral) to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Package and the Offering Memorandum.
(k) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the . The Company and the Guarantors will not engagetake reasonable precautions designed to insure that any offer or sale, and will cause their respective affiliates and any person acting on their behalf (other thandirect or indirect, in the United States or to any caseU.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers Purchasers), is made under restrictions and any of their affiliates, as to whom the Company and the Guarantors make no covenant) other circumstances reasonably designed not to engage (i) affect the status of the offer and sale of the Notes in any form of general solicitation or general advertising (within the meaning of Regulation D United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act) , including any sales pursuant to Rule 144A under, or any public offering within the meaning of Section 4(a)(2) of Regulations D or S of, the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.Act.
(no) The Company and the Guarantors agree to comply in all material respects with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each the Guarantors (in the case of the Acquired Guarantors, upon execution of the Joinder Agreement), jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company substantially similar to the Notes, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securitiessecurities substantially similar to the Notes, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) Upon request, so long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers and to the holders of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree not will take precautions designed to sellinsure that any offer or sale, offer for sale direct or solicit offers indirect, in the United States or to buy or otherwise negotiate in respect of any security U.S. person (as defined in Rule 902 under the Securities Act) that would be integrated with ), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in a manner that would require the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration under provisions of the Securities Act of Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSecurities Act.
(mn) In connection with any offer or sale None of the Notes, the Company and or any of the Guarantors will not engage, and will cause their respective affiliates and or any other person acting on its or their behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Guarantors make which no covenantcovenant is given) not to engage will (i) in solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(24(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) engage in any directed selling effort with respect to the Notes efforts within the meaning of Regulation S, and to all such persons will comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) Concurrent with the closing of the GeoResources Merger, the Company and the Guarantors shall cause the Acquired Guarantors to (i) execute and deliver the Joinder Agreement and (ii) execute and deliver supplemental indentures to the Indenture and/or take all necessary actions to become Guarantors under the Indenture.
(q) The Company and the Guarantors will use their best efforts to (i) do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to (ii) satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers Underwriters as follows:
(a) To file the Prospectus Supplement pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day after the date hereof (or such earlier time as may be required under the Act), in the form furnished by the Company to the Underwriters for use by the Underwriters and by dealers in connection with the offering of the Notes.
(b) To advise the Underwriters promptly and, if requested by the Underwriters, 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 Notes for offering or sale in any jurisdiction designated by the Underwriters pursuant to Section 3(h) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Notes, which event makes any statement of a material fact made in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus untrue or that requires any additions to or changes in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, without chargeif 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 Notes under any state securities or Blue Sky laws, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare shall use their best efforts to obtain the Offering Circular in a form approved by withdrawal or lifting of such order at the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringearliest possible time.
(c) To furnish the Underwriters, and those persons identified by the Underwriters to the Company, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may from time to time reasonably request for the time period specified in Section 3(f); in case the Underwriters are required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule), in connection with the sale of the Notes, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act. The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package Prospectus, and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and by all dealers to whom Notes may be sold, Underwriters in connection with the offering and sale of the Notes.
(d) If, at If it is necessary for any time prior post-effective amendment to completion the Registration Statement to be declared effective before the offering of the distribution Notes may commence, the Company will endeavor to cause such post-effective amendment to be declared effective as soon as possible and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment to the Registration Statement has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(e) To advise the Underwriters promptly and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible.
(f) During such period as a prospectus is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering and sale of the Notes by the Initial Purchasers Underwriters, (i) to Eligible Purchasersadvise the Underwriters promptly, and if requested by the Underwriters, to confirm such advice in writing, of any event occurs proposal to amend or information becomes known thatsupplement the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus, including by filing any documents that would be incorporated therein by reference, and to provide the Underwriters and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing and (ii) to prepare promptly upon any Underwriter’s reasonable request any amendment or supplement to the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus which in the judgment reasonable opinion of the Company or any of the Guarantors or in the opinion of counsel for the Initial PurchasersUnderwriters is believed to be necessary under the Act.
(g) To advise the Underwriters promptly, should be set forth during the period referred to in Section 3(f) above, if any event shall occur or condition shall exist as a result of which, it becomes necessary to amend or supplement the Pricing Disclosure Package Registration Statement, the Basic Prospectus, the Prospectus or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Permitted Free Writing Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or or, if it is necessary to amend or supplement the Registration Statement, the Basic Prospectus, the Prospectus or amend the Pricing Disclosure Package or the Offering Circular in order any Permitted Free Writing Prospectus to comply with any lawthe Act, and forthwith to prepare and file with the Company and the Guarantors will forthwith prepare Commission an appropriate amendment or supplement or amendment theretoto such Registration Statement, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Basic Prospectus, Prospectus, Permitted Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make Prospectus so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Registration Statement, the Company Basic Prospectus, Prospectus or Permitted Free Writing Prospectus will give notice thereof comply with applicable law, and to furnish to the Initial Purchasers through Underwriters and such other persons as the Representative and, if requested by Underwriters may designate such number of copies thereof as the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissionUnderwriters may reasonably request.
(fh) Promptly from time Prior to time the sale of all Notes as contemplated hereby, to take such action as cooperate with the Initial Purchasers may reasonably request Underwriters and counsel to qualify the Underwriters in connection with the registration or qualification of the Notes for offering offer and sale to the Underwriters under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Underwriters may request and to comply with continue such laws registration or qualification in effect so long as required and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation other than as to matters and transactions relating to the offering and sale of the Notes, or (iii) subject themselves to taxation in any jurisdiction in which they would it is not otherwise be now so subject.
(gi) For a period commencing on Whether or not the date hereof and ending on transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the 60th day after the date performance of the Offering Circular, obligations of the Company and the Guarantors agree not tounder this Agreement, directly or indirectly, including: (i) offer for salethe fees, sell, or otherwise dispose disbursements and expenses of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than counsel to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes to the Underwriters and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing Prospectus and any amendments or supplements thereto (including financial statements), including the mailing and delivering of copies thereof to the Underwriters and persons designated by them in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Notes to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Notes, (iv) all expenses in connection with the registration or qualification of the Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Blue Sky memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Notes and the Guarantees, (vi) the fees and expenses of the Trustee and the reasonable fees and disbursements of the Trustee’s counsel in connection with the Indenture, the Notes and the Guarantees, (vii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (viii) any fees charged by rating agencies for the rating of the Notes, and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as specifically provided in this Section and Sections 5 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Notes by them and any advertising expenses connected with any offers they may make.
(j) The Company and To obtain the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible approval of DTC for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers “book-entry” transfer of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement all of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book book-entry” transfer.
(ok) The 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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes and the Guarantees (other than (i) the Notes and the Guarantees and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Underwriters.
(l) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guarantees.
(m) Subject to Section 3(f) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company and the Guarantors with the Commission in order to comply with the Exchange Act for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Notes.
(n) To pay the fees applicable to the Registration Statement in connection with the offering of the Notes within the time required by Rule 456 under the Act (without reliance on subsection (b)(1)(i) thereof) and in compliance with Rule 456(r) under the Act.
(o) To make generally available to its security holders, and to deliver to the Underwriters, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(p) If requested by an Underwriter, to furnish to such Underwriter one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein).
(q) To the extent not otherwise available on EXXXX (as defined in Regulation S-T), to furnish to each Underwriter promptly (i) for a period of five years from the date of this Agreement (x) copies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (y) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission and
(z) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed and (ii) for the period referenced in Section 3(f) above, such other information as such Underwriter may reasonably request regarding the Company or its subsidiaries.
(r) To comply with Rule 433(g) under the Act.
(s) Not, at any time at or after the execution of this Agreement, to offer or sell any Notes by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Prospectus or any Permitted Free Writing Prospectus.
(t) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the NotesNotes and the Guarantees.
Appears in 1 contract
Samples: Underwriting Agreement (Allied Waste Industries Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not towill not, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that which is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, the Guarantors or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of their respective subsidiaries in either the economic benefits capital markets or risks of ownership of such debt securities of the Companybank loan markets, whether any such transaction described in clause except (i) in exchange for the Exchange Notes in connection with the Exchange Offer or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(g) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(h) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 9 hereof), or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the part of the Company or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree to reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel), reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company or any of the Guarantors for loss of profits or otherwise. Notwithstanding the foregoing, the Company and the Guarantors shall not be required to reimburse the Initial Purchasers if this Agreement is terminated as a result of the conditions in Section 7(k) hereof not being satisfied.
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it the Company hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates have taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that would reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (“PORTAL”) MarketSM securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in The PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until From and after the second anniversary Closing Date, so long as any of the Notes are outstanding and are “restricted securities” within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) During the period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates “affiliates” (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(o) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(np) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(oq) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(r) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
(t) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an “investment company” within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers as followsyou that:
(a) The It will advise you promptly and, if requested by any of 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 Series N Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering Memorandum (as amended or supplemented from time to time) untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company and each of the Guarantors shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws 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 the Securities under any state securities or Blue Sky laws, the Company and the Guarantors will furnish shall use every reasonable effort to obtain the Initial Purchasers, without charge, within one business day withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The It will furnish the Initial Purchasers and those persons identified as Eligible Purchasers by the Initial Purchasers to the Company as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the accuracy of the Initial Purchasers’ representations and warranties and the Initial Purchasers’ compliance with their agreements set forth in Section 7 hereof, the Company and the Guarantors will prepare consent to the use of the Offering Circular in a form approved Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and in connection with Exempt Resales.
(c) If during such period as in the opinion of counsel for the Initial Purchasers an Offering Memorandum is required to be delivered in connection with Exempt Resales by the Initial Purchasers, it will (i) not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) prepare promptly upon the Initial Purchasers’ reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information condition shall exist as a result of which it becomes known that, in the judgment of the Company necessary to amend or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madeexisting as of the date of the Offering Memorandum, not misleading, or if it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors it will forthwith promptly prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and furnish to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Securities pursuant to Exempt Resales as contemplated hereby, it will cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Securities for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions in the United States as the Initial Purchasers may request and continue such registration or qualification in effect so long as required for Exempt Resales and file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that neither the Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject.
(f) Neither the Company nor any Guarantor will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D of the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(g) So long as the Notes are outstanding, the Company will file on a timely basis with the Commission, to the extent such filings are accepted by the Commission, and whether or not the Company has a class of securities registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the annual reports, quarterly reports and other documents that the Company would be required to file if it were subject to Section 13 or Section 15(d) of the Exchange Act. For so long as the Initial Purchasers are making a market in the Notes, but in no event, more than five years from the date hereof, the Company will furnish to you, upon request and as soon as available, copies of all such reports and information, together with such other documents, reports and information as shall be furnished by the Company to the holders of the Notes, and such other information concerning the Company and its subsidiaries as you reasonably may request.
(h) So long as the Notes are outstanding, it will furnish to the Initial Purchasers, upon request and as soon as available, copies of all reports or other communications furnished by the Company or any of the Guarantors to any of its holders or furnished to or filed with the Commission and such other publicly available information concerning the Company, the Guarantors and/or their respective subsidiaries as the Initial Purchasers may reasonably request.
(i) So long as any of the Securities remain outstanding and during any period in which the Company and the Guarantors are not subject to Section 13 or 15(d) of the Exchange Act, upon the request of any holders of Notes it will furnish to such holder and to any prospective purchaser of Series N Notes from such holder, the information (“Rule 144A Information”) required by Rule 144A(d)(4) under the Act; provided, however, that the Company’s obligations under this Section 5(i) shall terminate upon the earlier of (i) the date the Exchange Offer is concluded and the exchange of the Exchange Securities for offering the Securities tendered therein is consummated or (ii) the date the Shelf Registration Statement is declared effective by the Commission; provided, further, that, notwithstanding the foregoing provisions, the Company shall be obligated to deliver, upon request, any information required by Rule 144A(d)(4) under the Act to prospective purchasers of the Securities during any period during which, pursuant to the Registration Rights Agreement, the Shelf Registration Statement is required to be effective, but such effectiveness has been suspended or revoked for any reason.
(j) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all costs, expenses, fees and taxes in connection with or incident to (i) the printing, processing, filing and distribution of the Offering Memorandum and all amendments or supplements thereto (but not including, however, legal fees and expenses of your counsel incurred in connection therewith), including such copies as may be reasonably requested by you, (ii) the issuance, transfer and delivery of the Securities to you and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of such the jurisdictions as referred to in paragraph 5(e) above (including, in each case, any filing fees and fees and expenses of counsel to the Initial Purchasers may request and to comply with such laws so as to permit incurred in connection therewith), (iv) the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution rating of the Notes; provided that Securities by investment rating agencies, (v) the approval of the Securities by DTC for “book-entry” transfer, (vi) the performance by each of the Company and the Guarantors of its other obligations under this Agreement, including (without limitation) the fees of the Trustee, the cost of its personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses and taxes incident to the sale and delivery of the Securities to you (but not including, however, legal fees and expenses of your counsel incurred in connection therewith therewith) and (vii) all expenses and listing fees in connection with the Company or any application for inclusion of the Guarantors shall not be required to Securities in the Private Offerings, Resales and Trading through Automatic Linkages Market (i“PORTAL”) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualifyof the National Association of Securities Dealers, Inc. (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject“NASD”).
(gk) For a It will use its best efforts to effect the inclusion of the Securities in PORTAL and to maintain such inclusion for so long as the Securities are outstanding.
(l) [Intentionally omitted].
(m) During the period commencing beginning on the date hereof and ending on continuing to and including the 60th day after the date of the Offering CircularClosing Date, the Company and the Guarantors agree it will not to, directly or indirectly, (i) offer for saleoffer, sell, contract to sell or otherwise transfer or dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesSecurities (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers, which consent shall not be unreasonably withheld.
(hn) The Company and It will use the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth Securities in the Pricing Disclosure Package and manner described in the Offering Circular Memorandum under the caption “Use of Proceeds.”
(io) The CompanyIt will not claim voluntarily, and will actively resist any attempts to claim, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price benefit of any security usury laws against the holders of the Company or the Guarantors in connection with the offering of the any Notes.
(jp) The Company and It will comply with all of its agreements set forth in the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTCRegistration Rights Agreement.
(kq) Until the second anniversary Each of the Closing Date, Guarantors and the Company will execute and the Guarantors will notdeliver, file and record all instruments and documents, and will not permit any of their respective affiliates do all such acts and other things as are necessary to subject the Collateral (as defined in Rule 144 under the Securities ActIndenture) toto the security interests intended to be created by the Amended and Restated Pledge and Security Agreement, resell any dated as of September 10, 2004 by and among the Pledgors (as defined therein) and Deutsche Bank Trust Company Americas, as collateral agent, as amended to date (the “Pledge and Security Agreement”) in favor of the Pledgee (as defined in the Pledge and Security Agreement) for the benefit of the holders of the Notes that have been acquired by any of them, except for Notes purchased by and as are reasonably necessary or advisable to perfect the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Actsecurity interests intended to be created thereby.
(lr) The Company It will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Series N Notes and the Guarantors agree Guarantees.
(s) It will 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 Series N Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series N Notes under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesAct.
(mt) In connection with any offer or sale of the NotesIt will use its best efforts to continue to be classified and treated as a partnership for Federal income tax purposes for its taxable year ending December 31, the Company 2005 and the Guarantors will not engage, continue to be so classified and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfertreated thereafter.
(ou) The Company It shall treat the Securities as indebtedness for tax purposes and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notesshall not take any position inconsistent therewith.
Appears in 1 contract
Samples: Purchase Agreement (HMC Ap Gp LLC)
Agreements of the Company and the Guarantors. The Company and each Each of the Guarantors, jointly Issuers and severally, agree the Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Initial Securities for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Circular, such number of copies of Memorandum or the Offering Circular as may then be amended Memorandum untrue or supplemented as they may reasonably requestthat requires any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Issuers and the Guarantors shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Initial Securities under any state securities or Blue Sky laws 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 Initial Securities under any state securities or Blue Sky laws, the Issuers and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as 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, the Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved connection with Exempt Resales.
(c) During such period as in the reasonable opinion of counsel for the Initial Purchasers an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Initial Securities are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes Memorandum that may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the reasonable opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the Notes sale of all Initial Securities pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Initial Securities for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; PROVIDED, HOWEVER, that neither the distribution of the Notes; provided that Issuers nor any Guarantor shall be required in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it is not now so qualified or to take any action that would not otherwise be required subject it to so qualify, (ii) file a general consent to service of process in any such jurisdictionor taxation, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or (iii) subject themselves to taxation Exempt Resales, in any jurisdiction in which they would it is not otherwise be now so subject.
(gf) For a period commencing on So long as the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectlySecurities are outstanding, (i) offer for sale, sell, or otherwise dispose to mail and make generally available as soon as practicable after the end of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than each fiscal year to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale record holders of the Notes to be sold by it hereunder substantially in accordance with a financial report of the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The CompanyIssuers, the Guarantors and their respective affiliates will not takesubsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, directly or indirectlyif any), any action designed all such financial reports to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the price end of any security and for such fiscal year, together with comparable information as of the Company or end of and for the Guarantors in connection with preceding year, certified by the offering Issuers' independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the Notesend of and for such period, and 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.
(jg) The Company and So long as the Securities are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuers or any of the Guarantors will use to its public security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuers or any of the Guarantors is listed and such other publicly available information concerning the Issuers and/or their commercially reasonable efforts to permit subsidiaries as the Notes to be eligible for clearance and settlement through DTCInitial Purchasers may reasonably request.
(kh) Until the second anniversary So long as any of the Closing Date, Securities remain outstanding and are "restricted securities" and during any period in which the Company and the Guarantors will notare 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 holder of such Securities in connection with any sale thereof and will not permit any prospective purchaser of their respective affiliates such Securities from such holder, the information of the Issuers (as defined in "RULE 144A INFORMATION") required by Rule 144 144A(d)(4) under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) Whether or not the transactions contemplated in any form of general solicitation this Agreement are consummated or general advertising (within the meaning of Regulation D of the Securities Act) this Agreement is terminated, to pay or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary cause to be done and performed under this Agreement by them prior paid all expenses incident to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.the
Appears in 1 contract
Samples: Purchase Agreement (West Texas & Lubbock Railroad Co Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum by the Initial Purchasers in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 180th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company Company, whether secured or unsecured, substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, Barclays Capital Inc. on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(on) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Global Geophysical Services Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers Underwriter as follows:
(a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared ef- fective before the offering of the Securities may commence, the Company and the Guarantors will furnish endeavor to cause the Initial PurchasersRegistration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, without chargeif requested by you, within one business day of will confirm such advice in writing, when the date of the Offering Circular, Registration Statement or such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestpost-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendment of or a supplement to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) two signed copies of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhib- its, as you may request, (iii) such number of copies of the Indenture and of the Incorporated Documents, without exhibits, as you may request, and (iv) two copies of the exhibits to the Incorporated Documents.
(d) The Company and the Guarantors will prepare not file any amendment to the Offering Circular in a form approved by the Initial Purchasers and will not Registration Statement or make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Prospectus of which the Initial Purchasers you shall not previously have been advised or to which they which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringobject.
(ce) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the Prepricing Prospectus. The Company and each of the Guarantors consents to the use use, in accordance with the provisions of the Pricing Disclosure Package Act and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes Securities are offered by you and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or any dealer, the Company will expeditiously deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company and each of the Guarantors consent to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchasers Underwriter and by all dealers to whom Notes Securities may be sold, both in connection with the offering and sale of the Notes.
(d) If, at any Securities and for such period of time prior to completion of thereafter as the distribution of the Notes Prospectus is required by the Initial Purchasers Act to Eligible Purchasers, be delivered in connection with sales by the Underwriter or any dealer. If during such period of time any event occurs or information becomes known that, shall occur that in the judgment of the Company or any of the Guarantors or in the reasonable opinion of counsel for the Initial Purchasers, should Underwriter is required to be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, Prospectus (as then amended or supplemented, does not include any untrue statement of material fact ) or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Prospectus in order to comply with the Act or any other law, the Company and the Guarantors will forthwith prepare and, subject to the provisions of para- graph (d) above, file with the Commission an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers Underwriter and dealers a reasonable number of copies thereof.
(e) None of . In the event that the Company and you agree that the Prospectus should be amended or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circularsupplemented, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative andCompany, if requested by the Representativeyou, will prepare and furnish without charge promptly issue a press release announcing or disclosing the matters to each Initial Purchaser a Free Writing Offering Document be covered by the proposed amendment or other document which will correct such conflict, statement or omissionsupplement.
(fg) Promptly from time to time to take such action as The Company and the Initial Purchasers may reasonably request to qualify Guarantors will cooperate with you and with counsel for the Notes Underwriter in connection with the registration or qualification of the Securities for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesregistration or qualification; provided that in connection therewith no event shall the Company or any of the Guarantors shall not Guarantor be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or sale of the Securities, or (iii) subject themselves to taxation in any jurisdiction in which they would where it is not otherwise be now so subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the Guarantors end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by you because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the condi- tions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriter) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder Securities substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities ActProspectus.
(l) The Company and the Guarantors agree 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 If Rule 430A of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notesis employed, the Company and will timely file the Guarantors will not engage, Prospectus pursuant to Rule 424(b) under the Act and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D advise you of the Securities Act) or any public offering within the meaning time and manner of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfersuch filing.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Pembroke Falls Realty Trust)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial PurchasersPurchaser, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers Purchaser and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers Purchaser and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers Purchaser to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers Purchaser and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeInitial Purchaser, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements made therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Purchaser and, if requested by the RepresentativeInitial Purchaser, will prepare and furnish without charge to each the Initial Purchaser a Free Writing Offering Document or other document which that will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers Purchaser may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statementstatement (other than pursuant to the Registration Rights Agreement), including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv4) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeInitial Purchaser, on behalf of except in exchange for the Initial PurchasersExchange Notes in connection with the Exchange Offer.
(h) The Parent will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Parent and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Parent and its subsidiaries for such quarter in reasonable detail; provided that so long as the Parent files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Parent shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, furnish at their expense (i) to the Initial Purchaser, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act and (ii) from time to time such other information concerning the Company and the Guarantors as the Initial Purchaser may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”” The Notes shall be incurred solely to refinance indebtedness that was existing on May 14, 2009.
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will use their reasonable best efforts to not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters letter(s) of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform all things required or take such steps as shall be necessary to be done and performed ensure that neither the Parent nor any of its subsidiaries becomes an “investment company” or a company “controlled by an investment company” within the meaning of such term under this Agreement by them prior to the Closing DateInvestment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(q) Neither Parent nor its subsidiaries will take any action or omit to satisfy all conditions precedent to take any action which may result in the loss by the Initial Purchasers’ obligations hereunder Purchaser of the ability to purchase rely on any stabilization safe harbor provided by the NotesFinancial Services Authority under the FSMA.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations or other business entity, as applicable, in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and and, until the completion of the distribution of the Notes, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised advised; provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes and the offering or conversion thereof; provided further, however, that the offeringCompany shall advise the Initial Purchasers in advance of the filing of any such Annual Report, Quarterly Report or Current Report.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously promptly furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, Company or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers; provided, however, that the foregoing restrictions shall not apply to any securities issued by the Company used to reduce the Company’s commitment under the Amended and Restated Commitment Letter, dated as of October 14, 2015, between the Company and Barclays Bank PLC, Credit Suisse AG, Credit Suisse Securities (USA) LLC, UBS AG and UBS Securities LLC.
(h) For so long as any of the Notes are outstanding, and unless otherwise available on the Commission’s Electronic Data Gathering and Retrieval System, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds,” including, as applicable, to consummate the Acquisition.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation SS under the Securities Act, and to comply with the offering restrictions requirement of Regulation S.S of the Securities Act.
(no) The Company and the Guarantors agree to comply in all material respects with all terms and conditions of the agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will use their commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Jarden Corp)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, (other than by filing documents under the Exchange Act that this clause shall not apply to any filing are incorporated by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringreference therein).
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any applicable law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish, at their expense, to the Initial Purchaser, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale None of the Notes, the Company and the Guarantors will not engage, and will cause their respective or any of its affiliates and or any other person acting on its or their behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Guarantors make which no covenantcovenant is to govern) not to engage will (i) in solicit offers for, or offer to sell, the Notes by means of any form of general solicitation or general advertising (within the meaning of 502(c) of Regulation D of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(24(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) engage in any directed selling effort with respect to the Notes efforts within the meaning of Regulation S, and to all such persons will comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a During the period commencing on the date hereof through and ending on including the 60th day date that is 60 days after the date of the Offering Circularhereof, the Company and each of the Guarantors agree not towill not, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf offer, sell, contract to sell or otherwise dispose of any debt securities substantially similar to the Notes issued or guaranteed by the Company or any of the Initial PurchasersGuarantors and having a tenor of more than one year except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) Upon request, so long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers and to the holders of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree not will take precautions designed to sellinsure that any offer or sale, offer for sale direct or solicit offers indirect, in the United States or to buy or otherwise negotiate in respect of any security U.S. person (as defined in Rule 902 under the Securities Act) that would be integrated with ), of any Notes or any substantially similar security issued by the Company or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in a manner that would require the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration under provisions of the Securities Act of Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSecurities Act.
(mn) In connection with any offer or sale None of the Notes, the Company and or any of the Guarantors will not engage, and will cause their respective affiliates and or any other person acting on its or their behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Guarantors make which no covenantcovenant is given) not to engage will (i) in solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(24(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) engage in any directed selling effort with respect to the Notes efforts within the meaning of Regulation S, and to all such persons will comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will use their best efforts to (i) do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to (ii) satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree covenants and agrees with each of the Initial Purchasers as followsthat:
(a) The Company and the Guarantors will furnish to shall advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day upon the Company or any Guarantor becoming aware (i) of the date issuance by any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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) of the happening of any event that makes any statement of a material fact made in the Disclosure Package or the Offering Circular, such number Memorandum untrue or that requires the making of copies any additions to or changes in the Disclosure Package or the Offering Memorandum in order to make the Disclosure Package or the Offering Memorandum not misleading in the light of the Offering Circular as may then be amended circumstances existing at the time it is delivered to an Eligible Purchaser. The Company and the Guarantors shall use their respective commercially reasonable efforts to prevent the issuance of any stop order or supplemented as they may reasonably requestorder suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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 from qualification of any Notes or the related Guarantees under any state securities or blue sky laws, the Company and the Guarantors shall use their respective commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Company and the Guarantors will prepare shall, without charge, during the Offering Circular period referred to in a form approved paragraph (c) below, provide to the Initial Purchasers and to counsel to the Initial Purchasers, and to those persons identified by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to Company as many copies of the Preliminary Offering Memorandum and the Offering Circular of which Memorandum and any amendments or supplements thereto, as the Initial Purchasers shall not previously have been advised or may reasonably request. The Company and the Guarantors consent to which they shall reasonably object after being so advised providedthe use of the Preliminary Offering Memorandum and the Offering Memorandum, that this clause shall not apply to and any filing amendments and supplements thereto required pursuant hereto, by the Company of Initial Purchasers in connection with Exempt Resales. The Initial Purchasers may not use any Annual Report on Form 10-Kwritten materials other than the Preliminary Offering Memorandum, Quarterly Report on Form 10-Q the Offering Memorandum, the Free Writing Offering Document and one or Current Report on Form 8-K with respect to matters unrelated more term sheets relating to the Notes or the offeringSecurities containing customary information and conveyed to purchasers of Securities, unless such material would not violate applicable laws.
(c) The Neither the Company and each of nor any Guarantor will amend or supplement the Guarantors consents to the use of the Pricing Disclosure Package and Preliminary Offering Memorandum or the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company Memorandum or any of the Guarantors amendment or supplement thereto during such period as, in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchasers for so that long as any Initial Notes are outstanding unless the Pricing Disclosure Package Initial Purchasers shall previously have been advised thereof and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent. The Company and the Guarantors shall promptly, upon the request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendment or supplement to the Preliminary Offering Memorandum or the Offering CircularMemorandum that may be necessary or advisable in connection with such Exempt Resales or such market making activities.
(d) If, during the period referred to in 6(c) above, any event shall occur as a result of which, it is necessary or advisable, in the opinion of counsel for the Initial Purchasers, to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum in order to make such Preliminary Offering Memorandum or Offering Memorandum not materially misleading in the light of the circumstances existing at the time it is delivered to an Eligible Purchaser, or if for any other reason it shall be necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable laws, rules or regulations, the Company and the Guarantors shall (subject to Section 6(c) hereof) forthwith amend or supplement such Preliminary Offering Memorandum or Offering Memorandum at its own expense so that, as then so amended or supplemented, does such Preliminary Offering Memorandum or Offering Memorandum will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereintherein not misleading or so that such Preliminary Offering Memorandum or Offering Memorandum will comply with all applicable laws, rules or regulations. The Company and the Guarantors shall supply any amendment or supplemented Offering Memorandum to the Initial Purchasers in such quantities as the Initial Purchasers may reasonably request.
(e) The Company and the Guarantors shall reasonably cooperate with the Initial Purchasers and counsel for the Initial Purchasers in connection with the qualification or registration of the Initial Notes and the Guarantees thereof for offering and sale under the securities or blue sky laws of such jurisdictions as the Initial Purchasers may designate and shall continue such qualifications in effect for as long as may be necessary to complete the Exempt Resales, but in no event longer than 365 days from the Closing Date; provided, however, that in connection therewith neither the Company nor any Guarantor shall be required to qualify as a foreign corporation where it is not now so qualified or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject, in each case, other than as to matters and transactions relating to the light Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales.
(f) The Company shall apply the net proceeds from the sale of the circumstances Initial Notes in the manner set forth under which they were made, not misleading, or if it is necessary to supplement or amend “Use of Proceeds” in the Pricing Disclosure Package and the Offering Memorandum.
(g) (intentionally omitted).
(h) None of the Company, the Guarantors or any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) will sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that could be integrated with the sale of the Initial Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Offering Circular Eligible Purchasers of the Initial Notes or to take any other action that would result in order the Exempt Resales not being exempt from registration under the Securities Act.
(i) For so long as any of the Notes remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act and are not able to comply with be sold in their entirety under Rule 144 under the Securities Act (or any lawsuccessor provision), for the benefit of holders from time to time of Initial Notes, the Company will furnish at its expense, upon request, to any holder or beneficial owner of Initial Notes and prospective purchasers of the Initial Notes, information (the “Additional Issuer Information”) specified in Rule 144A(d)(4) under the Securities Act, unless the Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Company and the Guarantors shall use all commercially reasonable efforts to (i) permit the Notes to be included for quotation on The PORTALSM Market and (ii) permit the Notes to be eligible for clearance and settlement through DTC.
(k) During the period that they are not subject to the reporting requirements of the Exchange Act, but in no event longer than two years from the Closing Date, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish shall deliver without charge to the Initial Purchasers (i) as soon as available, copies of each report and dealers a reasonable number other communication (financial or otherwise) of copies thereof.
(e) None the Company mailed to the Trustee of the holders of the Notes, stockholders or any national securities exchange on which any class of securities of the Company or any Guarantor may be listed (including without limitation, press releases) other than materials filed with the Commission or posted to ixxxxxxxxx.xxx and (ii) from time to time such other information concerning Parent and the Subsidiaries as the Initial Purchasers may reasonably request.
(l) The Company and the Guarantors shall not take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security of the Company or any Guarantor to facilitate the sale or resale of the Notes, or take any action prohibited by Regulation M under the Exchange Act, in connection with the distribution of the Securities and the Exchange Securities contemplated hereby. Except as permitted by the Securities Act, neither the Company nor any Guarantor will make distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum or (iii) other offering material in connection with the offering and sale of the Securities.
(m) For so long as the Notes constitute “restricted” securities within the meaning of Rule 144(a)(3) under the Securities Act, the Company and the Guarantors shall not, and shall not permit any Subsidiary to, solicit any offer to sell buy or solicitation of an offer to buy sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(n) During the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Securities or the Exchange Securities that would constitute a Free Writing Offering Document “restricted securities” under Rule 144 that have been reacquired by any of them.
(o) Prior to the Closing Date, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to issue any press release or other communications, directly or indirectly, or hold any press conference with respect to the issuance of the Initial Notes, Parent or any Subsidiary, the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of Parent or any Subsidiary, without the prior consent of the RepresentativeInitial Purchasers, which such consent shall not to be unreasonably withheld or delayed. If .
(p) Without the prior consent of the Initial Purchasers, which consent may not be unreasonably withheld, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to make any offer relating to the Initial Notes that would constitute a “free writing prospectus” (if the offering of the Notes was made pursuant to a registered offering under the Securities Act) as defined in Rule 405 under the Securities Act (a “Free Writing Offering Document”) any such Free Writing Offering Document the use of which has been consented to by the Initial Purchasers is listed on Schedule III hereto; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts would conflict with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular, includes would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give prompt notice thereof to the Initial Purchasers through the Representative and, if requested by the RepresentativeInitial Purchasers, will prepare and furnish without charge to each the Initial Purchaser Purchasers a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, Circular does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in which they where it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, the Guarantors or any of their respective subsidiaries, except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer, (ii) with the prior consent of Credit Suisse First Boston LLC ("CSFB") or (iii) in accordance with terms of the NRG plan of reorganization.
(g) If not otherwise available on the Commission's Electronic Data Gathering, Analysis and Retrieval system ("XXXXX"), the Company will furnish to the holders of the Notes as applicablesoon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, or sell or grant optionsstockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, rights or warrants as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with respect the fiscal quarter ending after the date of the Offering Circular), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such debt securities quarter in reasonable detail.
(h) If not otherwise available on XXXXX, so long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company or securities convertible into any Guarantor mailed to stockholders generally or exchangeable for such debt securities of the Company filed with any stock exchange or regulatory body and (ii) enter into any swap or from time to time such other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of information concerning the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of Guarantors as the Initial PurchasersPurchasers may reasonably request.
(hi) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “"Use of Proceeds.”"
(ij) The Except as stated in this Agreement and in the Offering Circular, neither the Company, the Guarantors and nor any of their respective affiliates has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their all commercially reasonable efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) Market(SM) (the "PORTAL Market(SM)") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market(SM) and to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until During the second anniversary period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes that constitute "restricted securities" under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(n) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company's subsidiaries becomes an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended.
(o) The Company and the Guarantors will use all commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (NRG Energy Inc)
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly Guarantors covenants and severally, agree agrees with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without charge, within one business day confirm such advice in writing (i) of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended issuance by any state securities commission or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company other regulatory authority of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q stop order or Current Report on Form 8-K with respect to matters unrelated to order suspending the qualification or exemption from qualification of any Notes or the offering.
Guarantees thereof 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 (cii) The Company and each of the Guarantors consents to the use happening of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, that makes any statement of a material fact made in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular so Memorandum untrue or that requires the Pricing Disclosure Package making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, . The Company and the Guarantors shall use their respective best efforts to prevent the issuance of any stop order or if it is necessary to supplement order suspending the qualification or amend the Pricing Disclosure Package exemption from qualification of any Notes or the Offering Circular in Guarantees thereof 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 to comply with suspending the qualification or exemption from qualification of any lawNotes or the Guarantees thereof under any state securities or Blue Sky laws, the Company and the Guarantors will forthwith prepare an appropriate supplement shall use their respective reasonable best efforts to obtain the withdrawal or amendment thereto, and will expeditiously lifting of such order at the earliest possible time.
(b) To furnish to the Initial Purchasers and dealers a reasonable number those persons identified by the Initial Purchasers to the Company, without charge, as many copies of copies thereofthe Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and the Guarantors consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) None Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum during such period as in the opinion of counsel for the Initial Purchasers the Preliminary Offering Memorandum or the Offering Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchasers for so long as any Initial Notes are outstanding unless the Initial Purchaser previously has been advised thereof and has not objected thereto within a reasonable time after being furnished a copy thereof. The Company and the Guarantors shall promptly prepare, upon the Initial Purchasers’ request, any amendment or any Guarantor will make any offer supplement to sell the Preliminary Offering Memorandum or solicitation of an offer the Offering Memorandum that may be reasonably necessary or advisable in connection with such Exempt Resales or such market-making activities.
(d) If, during the period referred to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representativein 4(c) above, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with which, in the information judgment of the Company and the Guarantors or in the reasonable opinion of counsel for the Company and the Guarantors or counsel for the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances then prevailingwhen such Preliminary Offering Memorandum or Offering Memorandum is delivered to an Eligible Purchaser, not misleading, as promptly as practicable after becoming aware thereofor if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable law, the Company will give notice thereof (i) to notify the Initial Purchasers through and (ii) forthwith to prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or the Representative andOffering Memorandum so that the statements therein as so amended or supplemented will not, if requested by in the Representativelight of the circumstances when it is so delivered, be misleading, or so that such Preliminary Offering Memorandum or the Offering Memorandum will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply with applicable law.
(fe) Promptly from time to time to take such action as To cooperate with the Initial Purchasers may reasonably request to qualify and counsel for the Initial Purchaser in connection with the qualification or registration of the Initial Notes for offering and sale the Guarantees thereof under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with continue such laws qualification in effect so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may required for the Exempt Resales; provided, however, that neither the Company nor any Guarantor shall be necessary to complete the distribution of the Notes; provided that required in connection therewith the Company to register or any of the Guarantors shall not be required to (i) qualify as a foreign corporations in corporation or a foreign limited liability company where it is not now so qualified or to take any jurisdiction in which they action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any such jurisdictionjurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, or to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company and the Guarantors hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the issuance, transfer and delivery of the Initial Notes and the Guarantees thereof to the Initial Purchasers, (iii) subject themselves the qualification or registration of the Notes and the Guarantees thereof for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky memorandum and the reasonable fees and disbursements of counsel for the Initial Purchaser relating thereto, which fees and disbursements shall be limited to taxation $7,500), (iv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in any jurisdiction connection with Exempt Resales, (v) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof), (vi) the fees, disbursements and expenses of the Company’s and the Guarantors’ counsel and accountants, (vii) all fees and expenses (including fees and expenses of counsel) of the Company and the Guarantors in which they would not otherwise be subjectconnection with the approval of the Notes by DTC for “book-entry” transfer, (viii) the rating of the Notes by rating agencies, (ix) the reasonable fees and expenses of the Trustee and its counsel, (x) the performance by the Company and the Guarantors of their other obligations under this Agreement and the other Operative Documents and (xi) “roadshow” travel and other expenses incurred by Company personnel (including expenses incurred in chartering a plane) in connection with the marketing and sale of the Notes. It is understood that the Initial Purchasers will bear their own expenses (other than expenses incurred in chartering a plane) in connection with this offering, including fees and disbursements of counsel and travel expenses whether associated with the “roadshow” or otherwise.
(g) For a period commencing on To use the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Initial Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and manner described in the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ih) The CompanyNot to voluntarily claim, and to resist actively any attempts to claim, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price benefit of any security usury laws against the holders of the Company or the Guarantors in connection with the offering of the any Notes.
(ji) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Initial Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesInitial Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(mj) In connection with For so long as any offer or sale of the Notes, Notes remain outstanding and during any period in which the Company and the Guarantors will are not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as subject to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation Section 13 or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(215(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to make available to any holder or beneficial owner of Initial Notes in connection with any offer sale thereof and any prospective purchaser of such Initial Notes from such holder or sale of beneficial owner, the information required by Rule 144A(d)(4) under the Act.
(k) To cause the Exchange Offer to be made in the appropriate form to permit registered Exchange Notes and/or (ii) and the Guarantees thereof to be offered in any directed selling effort with respect to exchange for the Initial Notes within and the meaning of Regulation S, Guarantees thereof and to comply with all applicable federal and state securities laws in connection with the offering restrictions requirement of Regulation S.Exchange Offer.
(nl) The Company and the Guarantors agree to To comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book book-entry” transfer.
(om) To effect the inclusion of the Notes in The PORTALSM Market (“PORTAL”) and to obtain approval of the Initial Notes by DTC for “book-entry” transfer.
(n) To the extent not publicly available through electronic means, during a period of five years following the Closing Date, to deliver without charge to the Initial Purchasers, as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other publicly available information that the Company and the Guarantors mail or otherwise make available to their securityholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange and such other publicly available information concerning the Company or any of its subsidiaries, including without limitation, press releases.
(o) Pxxxx to, but not after, the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared in the ordinary course by the Company, copies of any unaudited interim financial statements for any period subsequent to the periods covered by the financial statements in the Offering Memorandum.
(p) Not to take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes. Except as permitted by the Act, neither the Company nor any Guarantor will distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes.
(q) Prior to the Closing Date, not to issue any press release or other communications directly or indirectly or hold any press conference with respect to the issuance of the Initial Notes, the Company or any of its subsidiaries, the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of the Company or any of its subsidiaries, without the prior consent of the Initial Purchasers, such consent not to be unreasonably withheld or delayed.
(r) To comply with the agreements in the Indenture, the Registration Rights Agreements and each other Operative Document.
(s) To use its reasonable best efforts to do and perform all things necessary to perfect a first priority security interest in the Collateral that can be perfected by the filing of a mortgage, UCC financing statement or a United States intellectual property filing.
(t) To use its reasonable best efforts to do and perform all things required or necessary to be done to cause Ziff Dxxxx Publishing Inc. to promptly be duly qualified and in good standing as a foreign corporation authorized to do business in the States of Illinois, Massachusetts, Florida and Washington to the extent the nature of Zxxx Xxxxx Publishing Inc.’s business or its ownership or leasing of property requires such qualification.
(u) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them and the other Operative Documents prior to or after the Closing Date, Date and to satisfy all conditions precedent on its part to the delivery of the Initial Purchasers’ obligations hereunder to purchase Notes and the NotesGuarantees thereof.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and the Guarantors consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or Company, any of the Guarantors or or, in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, Memorandum does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers (and to any dealers who request such supplements or amendments or whose identities are provided to the Company by the Initial Purchasers) a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in which they where it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, nor any of the economic benefits or risks of ownership of such debt securities of the Companyits Subsidiaries, whether any such transaction described in clause except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer or (ii) above is with the prior consent of Xxxxxx Brothers Inc.
(g) The Company will furnish to be settled by delivery of debt securities the holders of the Company, as applicable, or other securities, Notes reports in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of manner provided for in the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial PurchasersIndenture.
(h) The So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers as soon as reasonably practicable, a copy of (i) each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or the Commission and (ii) any material report filed with any other federal regulatory body to the extent such report relates to any actual or alleged non-compliance with applicable laws, rules or regulations.
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ij) The Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes. Except as permitted by the Securities Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the "PORTAL Market") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(n) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company's Subsidiaries becomes an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy satisfy, to the extent such conditions precedent are within the control of the Company and the Guarantors, all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (BMC, Ltd.)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum, as may then be amended or supplemented supplemented, as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to To promptly take such action as the Initial Purchasers may from time to time reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv4) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) upon request and as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or the Guarantors as the Initial Purchasers may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book book-entry” transfer.
(op) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(q) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(r) None of the Company or any of its affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one three business day days of the date of the Offering Circularhereof, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereofthereof as promptly as practicable.
(e) None of the The Company or any Guarantor will not make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeXxxxxx Brothers Inc., which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Xxxxxx Brothers Inc. and, if requested by the RepresentativeXxxxxx Brothers Inc., will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 180th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv3) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeXxxxxx Brothers Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that can reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be designated as Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the “PORTAL MarketSM”) securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(on) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries is required to be registered as an “investment company” under the Investment Company Act of 1940.
(o) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(p) The Xxxxxx Brothers Inc. shall receive within 60 days of the Closing Date, and the title company issuing the policy referred to in clause (s) below (the “Title Insurance Company”) shall receive within 60 days of the Closing Date, maps or plats of an as-built survey of the sites of the Mortgaged Properties which were delivered to Xxxxxx Brothers Inc. by an independent professional licensed land surveyor reasonably satisfactory to Xxxxxx Brothers Inc. and the Title Insurance Company.
(q) The Xxxxxx Brothers Inc. shall receive within 30 days of receipt of the related survey referred to in clause (r) above in respect of each of the Mortgaged Properties a mortgagee’s title insurance policy (or policies) or marked up signed title commitment pursuant to a “New York” style real estate closing with the Title Insurance Company; each such policy or commitment shall (A) be in an amount equal to an amount mutually and reasonably agreeable by the Company and Xxxxxx Brothers Inc.; (B) be issued at ordinary rates; (C) insure that the Mortgage insured thereby creates a valid first-priority lien and security interest in each such Mortgaged Property constituting First Priority Collateral, free and clear of all defects and encumbrances, except for those defects and encumbrances expressly permitted as a Permitted Exception; (D) name the Trustee for the benefit of the holders of the Notes as the insured thereunder; (E) contain such endorsements and affirmative coverage as Xxxxxx Brothers Inc. shall reasonably request; and (F) be issued by title companies reasonably satisfactory to Xxxxxx Brothers Inc. (including any such title companies acting as co-insurers or reinsurers, at the option of Xxxxxx Brothers Inc.); Xxxxxx Brothers Inc. shall have received evidence satisfactory to them that all premiums in respect of such policy or commitment, all charges for mortgage recording tax and all related expenses, if any, have been paid. The Xxxxxx Brothers Inc. shall also receive a copy (to the extent obtainable) of all recorded documents referred to, or listed as exceptions to title in, the title policies or policies referred to in this clause.
(r) Upon delivery of the survey and title insurance policy for each Mortgaged Property, the applicable Guarantors shall, if reasonably necessary, have executed an amendment to the applicable Mortgage that is reasonably requested by Xxxxxx Brothers Inc. to more accurately reflect the real property that is intended to be covered thereby.
(s) The Company and each Guarantor (i) shall use their commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Mortgages and the Security Agreement and (ii) shall take all actions necessary to maintain such security interests and to perfect security interests in any collateral acquired after the Closing Date, in each case as and to the extent contemplated by the Mortgages and the Security Agreement.
(t) The Company and the Guarantors will use commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, Guarantors jointly and severally, severally agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series A Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series A Notes are offered by the Initial Purchasers and by all dealers to whom Series A Notes may be sold, in connection with the offering and sale of the Series A Notes.
(d) If, at any time prior to completion of the distribution of the Series A Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretothereto or such document, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by qualification of the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Series A Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided PROVIDED, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Series A Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(f) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(g) For a period commencing If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the date hereof and ending on the 60th day after the date part of the Offering CircularCompany or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks Guarantors for loss of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Series A Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(i) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, the Company and the Guarantors and their respective affiliates have not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company or and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(j) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of From and after the Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any furnish to holders of the Notes that have been acquired and prospective purchasers of Notes designated by any such holders, upon request of them, except for Notes purchased by the Companysuch holders or such prospective purchasers, the Guarantors or any of their respective affiliates and resold in a transaction registered information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct to permit compliance with Rule 144A in connection with resale of the Notes.
(l) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(m) The Company and the Guarantors agree 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 Series A Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Series A Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(o) The Company and the Guarantors agree to cause the Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Series B Notes to be offered in exchange for the Series A Notes, and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(q) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(r) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Series A Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The -------------------------------------------- Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers Underwriter as follows:
(a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or any Rule 462(b) Registration Statement to be declared effective before the offering of the Securities may commence, the Company and the Guarantors will furnish endeavor to the Initial Purchaserscause any such registration statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, without chargeif requested by you, within one business day of the date of the Offering Circularwill confirm such advice in writing, when any such number of copies of the Offering Circular as may then be amended registration statement or supplemented as they may reasonably requestsuch post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendment of or a supplement to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose; and (iii) within the period of time referred to in paragraph (e) below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which, in each case, makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) three signed copies of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iii) such number of copies of the Indenture and of the Incorporated Documents, without exhibits, as you may request, and (iv) three copies of the exhibits to the Incorporated Documents.
(d) The Company and the Guarantors will prepare not file any amendment to the Offering Circular in a form approved by the Initial Purchasers and will not Registration Statement or make any amendment or supplement to the Pricing Disclosure Package or Prospectus or, prior to the Offering Circular earlier of (i) the end of the period of time referred to in the first sentence in subsection (e) below and (ii) the first anniversary of the Closing Date, file any document which, upon filing becomes an Incorporated Document, of which the Initial Purchasers you shall not previously have been advised or to which they which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringobject.
(ce) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or any dealer, the Company will expeditiously deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package Prospectus (and the Offering Circular of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Notes Securities are offered by the Initial Purchasers Underwriter and by all dealers to whom Notes Securities may be sold, both in connection with the offering and sale of the Notes.
(d) If, at any Securities and for such period of time prior to completion of thereafter as the distribution of the Notes Prospectus is required by the Initial Purchasers Act to Eligible Purchasers, be delivered in connection with sales by the Underwriter or any dealer. If during such period of time any event occurs or information becomes known that, shall occur that in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should Underwriter is required to be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, Prospectus (as then amended or supplemented, does not include any untrue statement of material fact ) or omit to state a material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package Prospectus (or to file under the Offering Circular Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company and the Guarantors will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment theretothereto (or to such document), and will expeditiously furnish to the Initial Purchasers Underwriter and dealers a reasonable number of copies thereof.
(e) None of . In the event that the Company and you, as Underwriter, agree that the Prospectus should be amended or any Guarantor will make any offer to sell or solicitation of an offer to buy supplemented before the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularClosing Date, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative andCompany, if requested by the Representativeyou, will prepare and furnish without charge promptly issue a press release announcing or disclosing the matters to each Initial Purchaser a Free Writing Offering Document be covered by the proposed amendment or other document which will correct such conflict, statement or omissionsupplement.
(f) Promptly from time to time to take such action as The Company and the Initial Purchasers may reasonably request to qualify Guarantors will cooperate with you and with counsel for the Notes Underwriter in connection with the registration or qualification of the Securities for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesregistration or qualification; provided that in connection therewith no event shall the Company or any of the Guarantors shall not Guarantor be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or sale of the Securities, or (iii) subject themselves to taxation in any jurisdiction in which they would where it is not otherwise be now so subject.
(g) For The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing on the date hereof and ending on the 60th day after the effective date of the Offering CircularRegistration Statement and ending not later than 15 months thereafter, as soon as practicable after the Company and end of such period, which consolidated earnings statement shall satisfy the Guarantors agree not to, directly or indirectly, (iprovisions of Section 11(a) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial PurchasersAct.
(h) So long as any of the Securities are outstanding, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by you because of any failure or refusal on the part of the Company or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including reasonable fees and expenses of your counsel) incurred by you in connection herewith.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder Securities substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of ProceedsProspectus.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree hereby agrees with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly upon obtaining knowledge thereof and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Restricted Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Circular, such number of copies of Memorandum or the Offering Circular as may then be amended Memorandum untrue in any material respect or supplemented as they may reasonably requestthat requires any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading in any material respect. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Restricted Notes under any state securities or Blue Sky laws 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 Restricted Notes under any state securities or Blue Sky laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum (up through the date hereof) and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Restricted Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request based on the opinion of its counsel, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleadingmisleading in any material respect, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable federal or state securities law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not misleadingbe misleading in any material respect, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable federal or state securities law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Restricted Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Restricted Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available within 105 days (or as soon thereafter as is practicable) after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of income, a consolidated statement of cash flows and a consolidated statement of changes in shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available within 60 days (or as soon thereafter as practicable) after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of income and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as the Restricted Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all current reports on Form 8-K under the Exchange Act or written communications furnished by the Company to its security holders generally filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectis listed.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Restricted Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Restricted Notes in connection with any sale thereof and any prospective purchaser of such Restricted Notes from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
4 6 (i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all reasonable expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Restricted Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (mincluding financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by it in the quantities specified herein, (ii) In all costs and expenses related to the transfer and delivery of the Restricted Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Restricted Notes, (iv) all expenses in connection with the registration or qualification of the Restricted Notes and the Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any offer preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such registration or sale qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Restricted Notes and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Restricted Notes in the National Association of Securities Dealers, Inc.'s ("NASD") Private Offerings, Resales and Trading Through Automatic Linkages market ("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) costs and expenses of the Company and the Guarantors will not engage, and will cause their respective affiliates Exchange Offer and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliatesRegistration Statement, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Registration Rights Agreement and (xi) and all other reasonable costs and expenses incident to the performance of the obligations of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC hereunder for “book entry” transferwhich provision is not otherwise made in this Section.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Schuff Steel Co)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will promptly prepare the Offering Memorandum setting forth information regarding the Company, the Guarantors, the Notes and the Exchange Notes, the Guarantees and the Exchange Guarantees, in form and substance reasonably satisfactory to the Initial Purchaser, and will furnish to the Initial PurchasersPurchaser, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers Purchaser shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers Purchaser and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers Purchaser to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial PurchasersPurchaser, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers Purchaser and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeInitial Purchaser, which consent shall not be unreasonably withheld or delayed. If ; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularPricing Disclosure Package, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularPricing Disclosure Package, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Purchaser and, if requested by the RepresentativeInitial Purchaser, will prepare and furnish without charge to each the Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers Purchaser may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i1) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i1) or (ii2) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv3) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial PurchasersPurchaser, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) The Company will furnish to the holders of the Notes as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), will make available to its securityholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; provided that so long as the Company files periodic reports pursuant to Section 13 or 15(d) of the Exchange Act for the foregoing periods, the Company shall be deemed to comply with this Section 5(h).
(i) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchaser (i) upon request and as soon as available, a copy of each report of the Company or any Guarantor mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company or the Guarantors as the Initial Purchaser may reasonably request.
(j) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ik) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(ln) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(no) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(op) The Company and the Guarantors will take such steps as shall be necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended.
(q) Neither the Company nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to the Notes without an appropriate legend) which may result in the loss by the Initial Purchaser of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
(r) None of the Company or any of its affiliates or any other person acting on its or their behalf (other than the Initial Purchaser, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(s) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ Purchaser’s obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree covenants and agrees with each of the Initial Purchasers as followsthat:
(a) The Company and the Guarantors will furnish to shall advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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) of the happening of any event that makes any statement of a material fact made in the Disclosure Package or the Offering Circular, such number Memorandum untrue or that requires the making of copies any additions to or changes in the Disclosure Package or the Offering Memorandum in order to make the Disclosure Package or the Offering Memorandum not misleading in the light of the Offering Circular as may then be amended circumstances existing at the time it is delivered to an Eligible Purchaser. The Company and the Guarantors shall use their commercially reasonable efforts to prevent the issuance of any stop order or supplemented as they may reasonably requestorder suspending the qualification or exemption from qualification of any Notes or the related Guarantees 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 from qualification of any Notes or the related Guarantees under any state securities or blue sky laws, the Company and the Guarantors shall use their commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) The Company and the Guarantors will prepare shall, without charge, provide to the Offering Circular in a form approved Initial Purchasers and to counsel to the Initial Purchasers, and to those persons identified by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to Company as many copies of the Preliminary Offering Memorandum and the Offering Circular of which Memorandum, including all documents incorporated therein by reference, and any amendments or supplements thereto, as the Initial Purchasers shall not previously have been advised or may reasonably request. The Company and the Guarantors consent to which they shall reasonably object after being so advised providedthe use of the Preliminary Offering Memorandum and the Offering Memorandum, that this clause shall not apply to and any filing amendments and supplements thereto required pursuant hereto, by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K Initial Purchasers in connection with respect to matters unrelated to the Notes or the offeringExempt Resales.
(c) The Neither the Company and each of nor any Guarantor will amend or supplement the Guarantors consents to the use of the Pricing Disclosure Package and or the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company Memorandum or any of the Guarantors amendment or supplement thereto during such period as, in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchasers for so that long as any Initial Notes are outstanding unless the Pricing Initial Purchasers shall previously have been advised thereof and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent. The Company and the Guarantors shall promptly, upon the request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendment or supplement to the Disclosure Package or the Offering CircularMemorandum that may be necessary or advisable in connection with such Exempt Resales or such market making activities.
(d) If, during the period referred to in Section 6(c) above, any event shall occur as a result of which, it is necessary or advisable, in the opinion of counsel for the Initial Purchasers, to amend or supplement the Disclosure Package or the Offering Memorandum in order to make such Disclosure Package or Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to an Eligible Purchaser, or if for any other reason it shall be necessary or advisable to amend or supplement the Disclosure Package or the Offering Memorandum to comply with applicable laws, rules or regulations, the Company and the Guarantors shall (subject to Section 6(c) hereof) forthwith amend or supplement such Disclosure Package or Offering Memorandum at its own expense so that, as then so amended or supplemented, does such Disclosure Package or Offering Memorandum will not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, misleading or if it is necessary to supplement or amend the Pricing so that such Disclosure Package or Offering Memorandum will comply with all applicable laws, rules or regulations.
(e) The Company and the Offering Circular Guarantors shall cooperate with the Initial Purchasers and counsel for the Initial Purchasers in order connection with the qualification or registration of the Initial Notes and the Guarantees thereof for offering and sale under the securities or blue sky laws of such jurisdictions as the Initial Purchasers may designate and shall continue such qualifications in effect for as long as may be necessary to complete the Exempt Resales; provided, however, that in connection therewith neither the Company nor any Guarantor shall be required to qualify as a foreign entity where it is not now so qualified or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(f) If this Agreement shall terminate or shall be terminated after execution because of any failure or refusal on the part of the Company or any Guarantor to comply with the terms or fulfill any lawof the conditions of this Agreement, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretojointly and severally agree to reimburse the Initial Purchasers for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Initial Purchasers) incurred by the Initial Purchasers in connection herewith.
(g) The Company shall apply the net proceeds from the sale of the Initial Notes in the manner set forth under “Use of Proceeds” in the Disclosure Package and the Offering Memorandum.
(h) The Company and the Guarantors shall not voluntarily claim, and shall actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(i) The Company and the Guarantors shall do and perform all things required or necessary to be done and performed under this Agreement prior to or after the Closing Date and to satisfy all conditions precedent to the delivery of the Initial Notes and the Guarantees thereof.
(j) None of the Company, the Guarantors or any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) will expeditiously furnish sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that could be integrated with the sale of the Initial Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers and dealers a reasonable number or the Eligible Purchasers of copies thereofthe Initial Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Securities Act.
(ek) None [Intentionally omitted].
(l) [Intentionally omitted].
(m) The Company and the Guarantors shall comply with all of the agreements set forth in the representation letters to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.
(n) The Company and the Guarantors shall (i) permit the Notes to be included for quotation on The PORTALSM Market and (ii) permit the Notes to be eligible for clearance and settlement through DTC.
(o) [Intentionally omitted].
(p) [Intentionally omitted].
(q) The Company and the Guarantors shall not take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security of the Company or any Guarantor to facilitate the sale or resale of the Notes, or take any action prohibited by Regulation M under the Exchange Act, in connection with the distribution of the Securities and the Exchange Securities contemplated hereby. Except as permitted by the Securities Act, neither the Company nor any Guarantor will make distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum or (iii) other offering material in connection with the offering and sale of the Securities.
(r) For so long as the Notes constitute “restricted” securities within the meaning of Rule 144(a)(3) under the Securities Act, the Company and the Guarantors shall not, and shall not permit any Subsidiary to, (i) solicit any offer to sell buy or solicitation of an offer to buy sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S with respect to the Initial Notes or the Guarantees thereof.
(s) During the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Securities or the Exchange Securities that would constitute a Free Writing Offering Document “restricted securities” under Rule 144 that have been reacquired by any of them.
(t) Prior to the Closing Date, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to issue any press release or other communications, directly or indirectly, or hold any press conference with respect to the issuance of the Initial Notes, Parent or any Subsidiary, the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of Parent or any Subsidiary, without the prior consent of the RepresentativeInitial Purchasers, which such consent shall not to be unreasonably withheld or delayed. If .
(u) Without the prior consent of the Initial Purchasers, the Company and the Guarantors shall not, and shall not permit any of their respective “affiliates” (as defined in Rule 144 under the Securities Act) to make any offer relating to the Initial Notes that would constitute a “free writing prospectus” (if the offering of the Notes was made pursuant to a registered offering under the Securities Act) as defined in Rule 405 under the Securities Act (a “Free Writing Offering Document”); any such Free Writing Offering Document the use of which has been consented to by the Initial Purchasers is listed on Schedule III hereto; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts would conflict with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package Memorandum or the Offering Circular, includes would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give prompt notice thereof to the Initial Purchasers through the Representative and, if requested by the RepresentativeInitial Purchasers, will prepare and furnish without charge to each the Initial Purchaser Purchasers a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, Guarantors jointly and severally, severally agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series C Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series C Notes are offered by the Initial Purchasers and by all dealers to whom Series C Notes may be sold, in connection with the offering and sale of the Series C Notes.
(d) If, at any time prior to completion of the distribution of the Series C Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretothereto or such document, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by qualification of the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Series C Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Series C Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(f) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(g) For a period commencing If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the date hereof and ending on the 60th day after the date part of the Offering CircularCompany or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks Guarantors for loss of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Series C Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(i) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, the Company and the Guarantors and their respective affiliates have not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company or and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(j) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of From and after the Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any furnish to holders of the Notes that have been acquired and prospective purchasers of Notes designated by any such holders, upon request of them, except for Notes purchased by the Companysuch holders or such prospective purchasers, the Guarantors or any of their respective affiliates and resold in a transaction registered information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct to permit compliance with Rule 144A in connection with resale of the Notes.
(l) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(m) The Company and the Guarantors agree 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 Series C Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Series C Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(o) The Company and the Guarantors agree to cause the Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Series D Notes to be offered in exchange for the Series C Notes, and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(q) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(r) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Series C Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, Guarantors jointly and severally, severally agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series A Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series A Notes are offered by the Initial Purchasers and by all dealers to whom Series A Notes may be sold, in connection with the offering and sale of the Series A Notes.
(d) If, at any time prior to completion of the distribution of the Series A Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretothereto or such document, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by qualification of the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Series A Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Series A Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(f) So long as any of the Notes are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(g) For a period commencing If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the date hereof and ending on the 60th day after the date part of the Offering CircularCompany or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks Guarantors for loss of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Series A Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(i) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, the Company and the Guarantors and their respective affiliates have not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company or and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(j) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of From and after the Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any furnish to holders of the Notes that have been acquired and prospective purchasers of Notes designated by any such holders, upon request of them, except for Notes purchased by the Companysuch holders or such prospective purchasers, the Guarantors or any of their respective affiliates and resold in a transaction registered information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct to permit compliance with Rule 144A in connection with resale of the Notes.
(l) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(m) The Company and the Guarantors agree 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 Series A Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Series A Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(o) The Company and the Guarantors agree to cause the Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Series B Notes to be offered in exchange for the Series A Notes, and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company and the Guarantors agree that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(q) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(r) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Series A Notes.
Appears in 1 contract
Samples: Purchase Agreement (Americredit Financial Services of Canada LTD)
Agreements of the Company and the Guarantors. The Each of the -------------------------------------------- Company and each of the Guarantors, jointly Guarantors covenants and severally, agree agrees with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved issuance by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company state securities commission of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q stop order suspending the qualification or Current Report on Form 8-K with respect to matters unrelated to the exemption from qualification of any Notes or the offering.
related Guarantees 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 (cii) The Company and each of the Guarantors consents to the use happening of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, that makes any statement of a material fact made in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular so Memorandum untrue or that requires the Pricing Disclosure Package making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, . The Company and the Guarantors shall use their commercially reasonable best efforts to prevent the issuance of any stop order or if it is necessary to supplement order suspending the qualification or amend the Pricing Disclosure Package exemption of any Notes or the Offering Circular in related Guarantees 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 to comply with suspending the qualification or exemption of any lawNotes or the related Guarantees under any state securities or Blue Sky laws, the Company and the Guarantors will forthwith prepare an appropriate supplement shall use their commercially reasonable best efforts to obtain the withdrawal or amendment thereto, and will expeditiously lifting of such order at the earliest possible time.
(b) To furnish to the Initial Purchasers and dealers a reasonable number those persons identified by the Initial Purchasers to the Company, without charge, as many copies of copies thereofthe Preliminary Offering Memorandum and the Offering Memorandum, including all documents incorporated therein by reference, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company and the Guarantors consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) None Not to amend or supplement the Offering Memorandum during such period as in the opinion of counsel for the Initial Purchasers the Offering Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Company or Initial Purchasers for so long as any Guarantor will make any offer to sell or solicitation of an offer to buy Restricted Notes are outstanding unless the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company and the Guarantors shall promptly prepare, upon the Initial Purchasers' request, any amendment or supplement to the Offering Memorandum that may be unreasonably withheld necessary or delayed. If at any time following issuance of a Free Writing Offering Document advisable in connection with such Exempt Resales or such market making activities.
(d) If, during the period referred to in Section 4(c) above, any event occurred or occurs shall occur as a result of which such Free Writing Offering Document conflicts with the information which, in the Preliminary Offering Circularjudgment of the Company and the Guarantors or in the reasonable opinion of counsel for the Company and the Guarantors or counsel for the Initial Purchasers, the Pricing Disclosure Package it becomes necessary or advisable to amend or supplement the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances then prevailingwhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, as promptly as practicable after becoming aware thereofor if it is necessary or advisable to amend or supplement the Offering Memorandum to comply with applicable law, the Company will give notice thereof (i) to notify the Initial Purchasers through and (ii) forthwith to prepare an appropriate amendment or supplement to the Representative andOffering Memorandum so that the statements therein as so amended or supplemented will not, if requested by in the Representativelight of the circumstances when it is so delivered, be misleading, or so that the Offering Memorandum will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omissioncomply with applicable law.
(fe) Promptly from time to time to take such action as To cooperate with the Initial Purchasers may reasonably request to qualify and counsel for the Initial Purchasers in connection with the qualification or registration of the Restricted Notes for offering and sale the Guarantees thereof under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with continue such laws qualification in effect so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may required for the Exempt Resales; provided, however, that neither the Company nor any Guarantor shall be necessary to complete the distribution of the Notes; provided that required in connection therewith the Company to register or any of the Guarantors shall not be required to (i) qualify as a foreign corporations in corporation where it is not now so qualified or to take any jurisdiction in which they action that would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any such jurisdictionjurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, or to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company and the Guarantors hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all agreements, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) subject themselves the issuance, transfer and delivery of the Restricted Notes and the Guarantees endorsed thereon to taxation the Initial Purchasers, (iv) the qualification or registration of the Notes and the related Guarantees for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and disbursements of counsel for the Initial Purchasers relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in any jurisdiction connection with Exempt Resales, (vi) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and accountants, (viii) all fees and expenses (including fees and expenses of counsel) of the Company and the Guarantors in which they would not otherwise be subjectconnection with the approval of the Notes by DTC for "book-entry" transfer, (ix) rating the Notes by rating agencies, (x) the reasonable fees and expenses of the Trustee and its counsel, (xi) the performance by the Company and the Guarantors of their other obligations under this Agreement and the other Operative Documents and (xii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Notes.
(g) For a period commencing on To use the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Restricted Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and manner described in the Offering Circular 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 Notes.
(i) The Company, the Guarantors and To use their respective affiliates will not take, directly or indirectly, any action designed commercially reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or that has constituted or that reasonably would be expected after the Closing Date and use their respective commercially reasonable best efforts to cause or result in satisfy all conditions precedent on their part to the stabilization or manipulation delivery of the price of any security of the Company or the Guarantors in connection with the offering of the Restricted Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree not 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 Restricted Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesRestricted Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(k) For so long as any of the Notes remain outstanding and during any period in which the Company and the Guarantors are 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 holder or beneficial owner of Restricted Notes in connection with any sale thereof and any prospective purchaser of such Restricted Notes from such holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act.
(l) To cause the Exchange Offer to be made in the appropriate form to permit registered Exchange Notes and the Guarantees thereof to be offered in exchange for the Restricted Notes and the Guarantees thereof and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to To comply with the offering restrictions requirement of Regulation S.
(n) The Company Registration Rights Agreement and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(n) To effect the inclusion of the Notes in PORTAL and to obtain approval of the Restricted Notes by DTC for "book-entry" transfer.
(o) The During a period of two years following the Closing Date, to deliver without charge to the Initial Purchasers, as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other publicly available information that the Company and the Guarantors will do shall mail or otherwise make available to their securityholders and perform (ii) all things required reports, financial statements and proxy or necessary to be done information statements filed by the Company with the Commission or any national securities exchange and performed under this Agreement by them prior such other publicly available information concerning the Company or any of its subsidiaries.
(p) Prior to the Closing Date, and to satisfy all conditions precedent furnish to the Initial Purchasers’ obligations hereunder , as soon as they have been prepared in the ordinary course by the Company, copies of any unaudited interim financial statements for any period subsequent to purchase the periods covered by the financial statements appearing or incorporated by reference in the Offering Memorandum.
(q) Not to take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes. Except as permitted by the Act, neither the Company nor any Guarantor will distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Village at Breckenridge Acquisition Corp Inc)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and and, until the completion of the distribution of the Notes, will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised advised; provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes and the offering or conversion thereof; provided further, however, that the offeringCompany shall advise the Initial Purchasers in advance of the filing of any such Annual Report, Quarterly Report or Current Report.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously promptly furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 90th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, Company or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Bank PLC and X.X. Xxxxxx Securities plc, on behalf of the Initial Purchasers.
(h) For so long as any of the Notes are outstanding, and unless otherwise available on the Commission’s Electronic Data Gathering and Retrieval System, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTCthe facilities of Euroclear and Clearstream, as applicable, and to maintain such eligibility for so long as the Notes remain outstanding.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(mn) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation SS under the Securities Act, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions S of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transferSecurities Act.
(o) The Company and the Guarantors agree to comply in all material respects with all agreements set forth in the representation letter of the Company and the Guarantors to Euroclear and Clearstream relating to the approval of the Notes by Euroclear and Clearstream for “book entry” transfer.
(p) The Company and the Guarantors will use their commercially reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Jarden Corp)
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day as of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretothereto or such document, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify qualification of the Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided provided, that in connection therewith no event shall the Company or any of the Guarantors shall not be required obligated to (i) qualify as foreign corporations to do business in any jurisdiction in where it is not now so qualified or to take any action which they would not otherwise be required to so qualify, (ii) file a general consent subject it to service of process in any such jurisdictionsuits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Notes, in any jurisdiction in which they would where it is not otherwise be now so subject.
(gf) For a period commencing on the date hereof and ending on the 60th day after of 180 days from the date of the Offering CircularMemorandum, the Company and the Guarantors agree not towill not, directly or indirectly, (i) sell, offer for saleto sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that which is designed to, or would could be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) ), any debt securities of the Company substantially similar or the Guarantors in the high-yield capital markets, except (i) in exchange for the Exchange Notes and Exchange Guarantees in connection with the Exchange Offer or (ii) with the prior consent of Lehman Brothers Inc., which consent will not be unreasonably withheld.
(g) To make available to the record holders of the Notes or securities convertible into or exchangeable as soon as practicable after the end of each fiscal year a financial report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Offering Memorandum), to make available to its stockholders consolidated summary financial information of the Company and its consolidated subsidiaries for such debt securities quarter in reasonable detail.
(h) So long as any of the CompanyNotes are outstanding, the Company and the Guarantors will make available to the Initial Purchasers (i) as applicablesoon as available, or sell or grant options, rights or warrants with respect to such debt securities a copy of each financial report of the Company or securities convertible into any Guarantor mailed to stockholders generally or exchangeable for such debt securities of filed with any stock exchange or the Company Commission and (ii) enter into any swap or from time to time such other derivatives transaction that transfers to another, in whole or in part, any of publicly available information concerning the economic benefits or risks of ownership of such debt securities of Company and/or the Company, whether any such transaction described in clause Guarantors as the Initial Purchasers may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (iiotherwise than pursuant to a breach by an Initial Purchaser or by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) above is to or if this Agreement shall be settled terminated by delivery the Initial Purchasers because of debt securities of any failure or refusal on the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities part of the Company or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree to reimburse the Initial Purchasers for all out-of-pocket expenses (ivincluding reasonable fees and expenses of its counsel) publicly announce an offering of reasonably incurred by it in connection herewith, but without any debt securities further obligation on the part of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent any of the Representative, on behalf Guarantors for loss of the Initial Purchasersprofits or other damages.
(hj) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(ik) The Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company, the Guarantors and nor any of their respective affiliates has taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of the Guarantors to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, the Company and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(jl) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) Market(SM) (the "PORTAL Market(SM)") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market(SM) and to permit the Notes to be eligible for clearance and settlement through DTC.
(km) Until From and after the second anniversary Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors will satisfy the information delivery requirements pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(n) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(o) During the period of two years after the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates "affiliates" (as defined in Rule 144 under the Securities Act) ), to, resell any of the Notes which constitute "restricted securities" under Rule 144 that have been acquired reacquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lp) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(nq) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters letter of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “"book entry” " transfer.
(or) The Company and the Guarantors agree that prior to any registration of the Notes and the Guarantees pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(s) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(t) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
(u) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ ' obligations hereunder to purchase the Notes.
(v) The Company will use its reasonable best efforts to obtain the consent of a majority of the lenders to the Credit Agreement (as defined in the Offering Memorandum) to the extent required by the Credit Agreement.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree agrees with each of the Initial Purchasers as followsyou that:
(a) The It will advise you promptly and, if requested by any of 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 Series L Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering Memorandum (as amended or supplemented from time to time) untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company and each of the Guarantors shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws 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 the Securities under any state securities or Blue Sky laws, the Company and the Guarantors will furnish shall use every reasonable effort to obtain the Initial Purchasers, without charge, within one business day withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The It will furnish the Initial Purchasers and those persons identified as Eligible Purchasers by the Initial Purchasers to the Company as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the accuracy of the Initial Purchasers’ representations and warranties and the Initial Purchasers’ compliance with their agreements set forth in Section 7 hereof, the Company and the Guarantors will prepare consent to the use of the Offering Circular in a form approved Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers and in connection with Exempt Resales.
(c) If during such period as in the opinion of counsel for the Initial Purchasers an Offering Memorandum is required to be delivered in connection with Exempt Resales by the Initial Purchasers, it will (i) not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) prepare promptly upon the Initial Purchasers’ reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information condition shall exist as a result of which it becomes known that, in the judgment of the Company necessary to amend or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madeexisting as of the date of the Offering Memorandum, not misleading, or if it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors it will forthwith promptly prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and furnish to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Securities pursuant to Exempt Resales as contemplated hereby, it will cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Securities for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions in the United States as the Initial Purchasers may request and continue such registration or qualification in effect so long as required for Exempt Resales and file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that neither the Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject.
(f) Neither the Company nor any Guarantor will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D of the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(g) So long as the Notes are outstanding, the Company will file on a timely basis with the Commission, to the extent such filings are accepted by the Commission, and whether or not the Company has a class of securities registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the annual reports, quarterly reports and other documents that the Company would be required to file if it were subject to Section 13 or Section 15(d) of the Exchange Act. For so long as the Initial Purchasers are making a market in the Notes, but in no event, more than five years from the date hereof, the Company will furnish to you copies of all such reports and information, together with such other documents, reports and information as shall be furnished by the Company to the holders of the Notes, and such other information concerning the Company and its subsidiaries as you reasonably may request.
(h) So long as the Notes are outstanding, it will furnish to the Initial Purchasers, upon request and as soon as available, copies of all reports or other communications furnished by the Company or any of the Guarantors to any of its holders or furnished to or filed with the Commission and such other publicly available information concerning the Company, the Guarantors and/or their respective subsidiaries as the Initial Purchasers may reasonably request.
(i) So long as any of the Securities remain outstanding and during any period in which the Company and the Guarantors are not subject to Section 13 or 15(d) of the Exchange Act, upon the request of any holders of Notes it will furnish to such holder and to any prospective purchaser of Series L Notes from such holder, the information (“Rule 144A Information”) required by Rule 144A(d)(4) under the Act; provided, however, that the Company’s obligations under this Section 5(i) shall terminate upon the earlier of (i) the date the Exchange Offer is concluded and the exchange of the Exchange Securities for offering the Securities tendered therein is consummated or (ii) the date the Shelf Registration Statement is declared effective by the Commission; provided, further, that, notwithstanding the foregoing provisions, the Company shall be obligated to deliver, upon request, any information required by Rule 144A(d)(4) under the Act to prospective purchasers of the Securities during any period during which, pursuant to the Registration Rights Agreement, the Shelf Registration Statement is required to be effective, but such effectiveness has been suspended or revoked for any reason.
(j) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all costs, expenses, fees and taxes in connection with or incident to (i) the printing, processing, filing and distribution of the Offering Memorandum and all amendments or supplements thereto (but not including, however, legal fees and expenses of your counsel incurred in connection therewith), including such copies as may be reasonably requested by you, (ii) the issuance, transfer and delivery of the Securities to you and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of such the jurisdictions as referred to in paragraph 5(e) above (including, in each case, any filing fees and fees and expenses of counsel to the Initial Purchasers may request and to comply with such laws so as to permit incurred in connection therewith), (iv) the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution rating of the Notes; provided that Securities by investment rating agencies, (v) the approval of the Securities by DTC for “book-entry” transfer, (vi) the performance by each of the Company and the Guarantors of its other obligations under this Agreement, including (without limitation) the fees of the Trustee, the cost of its personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses and taxes incident to the sale and delivery of the Securities to you (but not including, however, legal fees and expenses of your counsel incurred in connection therewith therewith) and (vii) all expenses and listing fees in connection with the Company or any application for inclusion of the Guarantors shall not be required to Securities in the Private Offerings, Resales and Trading through Automatic Linkages Market (i“PORTAL”) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualifyof the National Association of Securities Dealers, Inc. (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject“NASD”).
(gk) For a It will use its best efforts to effect the inclusion of the Securities in PORTAL and to maintain such inclusion for so long as the Securities are outstanding.
(l) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S of the Act (“Regulation S”) the Company will not register any transfer of such Securities not made in accordance with the provisions of Regulation S.
(m) During the period commencing beginning on the date hereof and ending on continuing to and including the 60th day after the date of the Offering CircularClosing Date, the Company and the Guarantors agree it will not to, directly or indirectly, (i) offer for saleoffer, sell, contract to sell or otherwise transfer or dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes or securities convertible or exchangeable into such debt securitiesSecurities (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers, which consent shall not be unreasonably withheld.
(hn) The Company and It will use the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth Securities in the Pricing Disclosure Package and manner described in the Offering Circular Memorandum under the caption “Use of Proceeds.”
(io) The CompanyIt will not claim voluntarily, and will actively resist any attempts to claim, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price benefit of any security usury laws against the holders of the Company or the Guarantors in connection with the offering of the any Notes.
(jp) The Company and It will comply with all of its agreements set forth in the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTCRegistration Rights Agreement.
(kq) Until the second anniversary Each of the Closing Date, Guarantors and the Company will execute and the Guarantors will notdeliver, file and record all instruments and documents, and will not permit any of their respective affiliates do all such acts and other things as are necessary to subject the Collateral (as defined in Rule 144 under the Securities ActIndenture) toto the security interests intended to be created by the Pledge and Security Agreement, resell any dated as of June 6, 2002 by and among the Pledgors (as defined therein) and Deutsche Bank Trust Company Americas, as collateral agent, as amended to date (the “Pledge and Security Agreement”) in favor of the Pledgee (as defined in the Pledge and Security Agreement) for the benefit of the holders of the Notes that have been acquired by any of them, except for Notes purchased by and as are reasonably necessary or advisable to perfect the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Actsecurity interests intended to be created thereby.
(lr) The Company It will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Series L Notes and the Guarantors agree Guarantees.
(s) It will 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 Series L Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series L Notes under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesAct.
(mt) In connection with any offer or sale of the NotesIt will use its best efforts to continue to be classified and treated as a partnership for Federal income tax purposes for its taxable year ending December 31, the Company 2004 and the Guarantors will not engage, continue to be so classified and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfertreated thereafter.
(ou) The Company It shall treat the Securities as indebtedness for tax purposes and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notesshall not take any position inconsistent therewith.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, without chargeif 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 Series A Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised provided, that this clause shall not apply and (ii) to any filing by prepare promptly upon the Company reasonable request of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Circular, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.Initial
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 Offering Memorandum untrue or that requires any additions to or changes in the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their reasonable best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, without chargeif 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 Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The Company To furnish the Initial Purchasers and the Guarantors will prepare the Offering Circular in a form approved those persons identified by the Initial Purchasers to the Company as many copies of the Offering Memorandum, and will any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Prior to the sale of all Notes pursuant to Exempt Resales as contemplated hereby, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of and the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis, all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "EXCHANGE ACT"), to make available to any holder of Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering of the Notes.
(j) The Company sale and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any delivery of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or and pursuant to Exempt Resales, and all other fees and expenses in connection with the Eligible Purchasers preparation, printing, filing and distribution of the Notes.
Offering Memorandum and all amendments and supplements to any of the foregoing (mincluding financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, (ii) In all costs and expenses related to the transfer and delivery of the Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or reproducing this Agreement, the other Operative Documents and any other agreements or documents in connection with any offer the offering, purchase, sale or sale delivery of the Notes, (iv) all expenses in connection with the Company registration or qualification of the Notes and the Guarantors will not engage, Subsidiary Guarantees for offer and will cause their respective affiliates sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any person acting on their behalf preliminary and supplemental Blue Sky memoranda in connection therewith (other than, in any case, including the filing fees and fees and disbursements of counsel for the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer such registration or sale qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with Subsidiary Guarantees, (vi) all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.expenses and
Appears in 1 contract
Samples: Purchase Agreement (Grey Wolf Inc)
Agreements of the Company and the Guarantors. The Each of the Company and each of --------------------------------------------- the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the 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 Restricted Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of 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 any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company and the Guarantors will furnish shall use their best efforts to prevent the Initial Purchasersissuance of any stop order or order suspending the qualification or exemption of any Restricted Notes under any state securities or Blue Sky laws and, without chargeif 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 Restricted Notes under any state securities or Blue Sky laws, within one business day the Company and the Guarantors shall use their best efforts to obtain the withdrawal or lifting of such order at the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably requestearliest possible time.
(b) The To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company as many copies of the Preliminary Offering Memorandum and the Guarantors will prepare Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Circular Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in a form approved 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 by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Restricted Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request based on the opinion of its counsel, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q amendment or Current Report on Form 8-K with respect to matters unrelated supplement to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in Memorandum which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) above, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes such Offering Memorandum so that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Memorandum will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Restricted Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Restricted Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company, the Guarantors and their subsidiaries on a consolidated basis or of Master Graphics, Inc. if such report is required to be made available pursuant to Section 4.6 of the Indenture (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the independent public accountants of the Company or Master Graphics, Inc., as applicable, and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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 of the Company or Master Graphics, Inc., as applicable.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Restricted Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "Exchange Act"), to make available to any holder of Restricted Notes in ------------ connection with any sale thereof and any prospective purchaser of such Restricted Notes from such holder, the information ("Rule 144A Information") --------------------- required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Restricted Notes to the Initial Purchasers and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), 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 Restricted Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Restricted Notes, (iv) all expenses in connection with the registration or qualification of the Restricted Notes and the Guarantees 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 and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Restricted Notes and the Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Restricted Notes in the National Association of Securities Dealers, Inc. ("NASD") Private Offerings, Resales and Trading through Automatic Linkages ---- Market ("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's ------ counsel in connection with the Indenture, the Notes and the Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section.
(j) The Company and the Guarantors will To use their commercially reasonable its best efforts to permit effect the inclusion of the Restricted Notes in PORTAL and to be eligible maintain the listing of the Restricted Notes on PORTAL for clearance and settlement through DTCso long as the Restricted Notes are outstanding.
(k) Until To obtain the second anniversary approval of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except DTC for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers "book-entry" transfer of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement all of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book "book-entry” " transfer.
(l) Except as described in the Offering Memorandum, 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 the Company or any Guarantor or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company or any Guarantor substantially similar to the Notes and the Guarantees (other than (i) the Notes and the Guarantees and (ii) commercial paper issued in the ordinary course of business), 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 Restricted Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Restricted Notes 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 Notes and the related Guarantees.
(o) The Company To cause the Exchange Offer to be made in the appropriate form to permit Exchange Notes and guarantees thereof by the Guarantors registered pursuant to the Act to be offered in exchange for the Restricted Notes and the Guarantors will Guarantees and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in the Registration Rights Agreement.
(q) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by them it prior to the Closing Date, Date and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase delivery of the NotesRestricted Notes and the Guarantees.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they it may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeInitial Purchasers, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative and, if requested by the RepresentativeInitial Purchasers, will prepare and furnish without charge to each the Initial Purchaser Purchasers a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 180th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(kl) Until the second anniversary of the Closing Date, the The Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lm) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering CircularMemorandum, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular Memorandum in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Memorandum by the Initial Purchasers in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Offering Circular Memorandum so that the Pricing Disclosure Package or the Offering CircularMemorandum, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the RepresentativeRepresentatives, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering Circular Memorandum or, when taken together with the information in the Preliminary Offering CircularMemorandum, the Pricing Disclosure Package or the Offering CircularMemorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representative Representatives and, if requested by the RepresentativeRepresentatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company or any of the Guarantors shall not be required to (i) qualify as a foreign corporations corporation in any jurisdiction in which they it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves itself to taxation in any jurisdiction in which they it would not otherwise be subject.
(g) For a period commencing on the date hereof and ending on the 60th 180th day after the date of the Offering CircularMemorandum, the Company and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the RepresentativeBarclays Capital Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Company and the Guarantors will, furnish at their expense to the Initial Purchasers, and, upon request, to the holders of the Notes and prospective purchasers of the Notes the information required by Rule 144A(d)(4) under the Securities Act (if any).
(i) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “Use of Proceeds.”
(ij) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would could be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering of the Notes.
(jk) The Company and the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Date, the Company and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(on) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Global Geophysical Services Inc)
Agreements of the Company and the Guarantors. The Each of the --------------------------------------------- Company and each of the Guarantors, jointly and severally, agree Guarantors hereby agrees with each of the Initial Purchasers as follows:
(a) The Company and To advise the Guarantors will furnish to Initial Purchasers promptly and, if requested by the Initial Purchasers, without chargeconfirm such advice in writing, within one business day (i) of the date issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Senior Notes for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of the happening of any event during the period referred to in Section 5(c) hereof that makes any statement of a material fact made in the Offering Circular untrue or that requires any additions to or changes in the Offering Circular in order to make the statements therein not misleading. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Senior Notes under any state securities or Blue Sky laws 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 Senior Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) At any time prior to the completion of Exempt Resales by the Initial Purchasers, to furnish the Initial Purchasers as many copies of the Offering Circular, such number of copies and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Offering Circular as may then be amended or supplemented as they may reasonably requestCircular, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(bc) The Company and At any time prior to the Guarantors will prepare the Offering Circular in a form approved completion of Exempt Resales by the Initial Purchasers and will in connection with market-making activities of the Initial Purchasers for so long as any Senior Notes are outstanding, (i) not to make any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they the Initial Purchasers shall reasonably object (within five business days after receiving a copy thereof) after being so advised providedand (ii) to prepare promptly upon the Initial Purchasers' reasonable request, that this clause shall not apply any amendment or supplement to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, necessary or advisable in connection with the offering and sale of the Notessuch Exempt Resales or such market-making activities.
(d) If, at any time prior during the period referred to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasersin Section 5(c) hereof, any event occurs shall occur or information becomes known thatcondition shall exist as a result of which, in the judgment of the Company or any of the Guarantors or in the opinion of counsel for to the Initial Purchasers, should be set forth in the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Circular is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order to comply with any applicable law, the Company and the Guarantors will forthwith to prepare an appropriate amendment or supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None of the Company or any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances then prevailingwhen it is so delivered, not be misleading, as promptly as practicable after becoming aware thereofor so that such Offering Circular will comply with applicable law, the Company will give notice thereof and to furnish to the Initial Purchasers through and such other persons as the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct Purchasers may designate such conflict, statement or omission.
(f) Promptly from time to time to take such action number of copies thereof as the Initial Purchasers may reasonably request request.
(e) Prior to qualify the sale of all Senior Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or qualification of the Senior Notes for offering offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with continue such laws qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be necessary in order to complete the distribution of the Noteseffect such registration or qualification; provided that neither the Company nor the Guarantors shall be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify the holders of Notes or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchasers may reasonably request.
(g) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Senior Notes remain outstanding and during any period in which the Company and the Guarantors agree are not to, directly subject to Section 13 or indirectly, (i15(d) offer for sale, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities Securities Exchange Act of the Company1934, as applicableamended (the .Exchange Act.), or sell or grant options, rights or warrants with respect to such debt securities make available to any holder of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Senior Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
(i) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantors in connection with the offering any sale thereof and any prospective purchaser of the Notes.
(j) The Company and the Guarantors will use their commercially reasonable efforts to permit the such Senior Notes to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of the Closing Datefrom such holder, the Company and the Guarantors will not, and will not permit any of their respective affiliates information (as defined in .Rule 144A Information.) required by Rule 144 under the Securities Act144A(d)(4) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(lh) The Company and Whether or not the Guarantors agree not transactions contemplated in this Agreement are consummated or this Agreement is terminated, to sell, offer for sale pay or solicit offers cause to buy or otherwise negotiate in respect of any security (as defined in be paid all expenses incident to the Securities Act) that would be integrated with the sale performance of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters obligations of the Company and the Guarantors to DTC relating under this Agreement, including (i) the fees, disbursements and expenses of counsel to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done accountants of the Company and performed under this Agreement by them prior to the Closing Date, Guarantors in connection with the sale and to satisfy all conditions precedent delivery of the Senior Notes to the Initial Purchasers’ obligations hereunder Purchasers and pursuant to purchase Exempt Resales, and all other fees or expenses in connection with the Notes.preparation, printing, filing and distribution of the Offering Circular and all amendments and supplements to any of the foregoing (including financial statements) specified in Section 5(b) and 5(c) hereof prior to or during the period specified in Section 5(c) hereof, including the mailing and delivery of copies thereof to the Initial Purchasers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Senior Notes to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents
Appears in 1 contract
Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represent to and agree with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to the Initial Purchasers, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular Memorandum as may then be amended or supplemented as they may reasonably request, on or prior to 12:00 (noon) on the date following this Agreement.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved by the Initial Purchasers and will not make any amendment or supplement to the Pricing Disclosure Package Preliminary Offering Memorandum or to the Offering Circular Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K with respect to matters unrelated to the Notes or the offeringadvised.
(c) Prior to the execution and delivery of this Agreement, the Company and the Guarantors shall have delivered or will deliver to the Initial Purchasers, without charge, in such quantities as the Initial Purchasers shall have reasonably requested or may hereafter reasonably request, copies of the Preliminary Offering Memorandum. The Company and each of the Guarantors consents consent to the use of the Pricing Disclosure Package and the Offering Circular use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes Series A Securities are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company and the Guarantors. The Company and each of the Guarantors consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Series A Securities are offered by the Initial Purchasers and by all dealers to whom Notes Series A Securities may be sold, in connection with the offering and sale of the NotesSeries A Securities.
(d) If, at any time prior to completion of the distribution of the Notes Series A Securities by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, shall occur that in the judgment of the Company or Company, any of the Guarantors or in the opinion of counsel for the Initial Purchasers, Purchasers should be set forth in the Pricing Disclosure Package or the Offering Circular so that the Pricing Disclosure Package or the Offering Circular, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Circular Memorandum in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment theretothereto or such document, and will expeditiously furnish to the Initial Purchasers and dealers a reasonable number of copies thereof.
(e) None The Company and each of the Company or any Guarantor Guarantors will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent shall not be unreasonably withheld or delayed. If at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts cooperate with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through and with their counsel in connection with the Representative and, if requested by qualification of the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes Series A Securities for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notesqualification; provided PROVIDED, that in connection therewith no event shall the Company or any of the Guarantors shall be obligated to qualify to do business in any jurisdiction where it is not be required now so qualified or to take any action which would subject it to (i) qualify as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdictionsuits, other than those arising out of the offering or sale of the Series A Securities or (iiiii) subject themselves to taxation in excess of a nominal amount, in each case in any jurisdiction in which they would where it is not otherwise be now so subject.
(f) So long as any of the Securities are outstanding, the Company and the Guarantors will furnish to the Initial Purchasers (i) as soon as available, a copy of each report of the Company mailed to the Trustee or the holders of the Securities generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company and/or the Guarantors as the Initial Purchasers may reasonably request.
(g) For a period commencing If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the date hereof and ending on the 60th day after the date part of the Offering CircularCompany or any of the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, the Company and the Guarantors agree not toto reimburse the Initial Purchasers for all out-of-pocket expenses (including reasonable fees and expenses of its counsel) reasonably incurred by it in connection herewith, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into but without any device that is designed to, or would be expected to, result in further obligation on the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities part of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks Guarantors for loss of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash profits or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes Series A Securities to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular Memorandum under the caption “"Use of Proceeds.”"
(i) The CompanyExcept as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, the Company and the Guarantors and their respective affiliates have not taken, nor will not any of them take, directly or indirectly, any action designed to or that has constituted or that might reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security the Securities to facilitate the sale or resale of the Securities. Except as permitted by the Securities Act, the Company or and the Guarantors will not distribute any offering material in connection with the offering of the NotesExempt Resales.
(j) The Company and the Guarantors will use their commercially reasonable best efforts to permit the Notes Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Securities to be eligible for clearance and settlement through DTC.
(k) Until the second anniversary of From and after the Closing Date, so long as any of the Securities are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Securities Act and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the Company and the Guarantors will notfurnish to holders of the Securities and prospective purchasers of Securities designated by such holders, and will not permit any upon request of their respective affiliates (as defined in such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144 144A(d)(4) under the Securities Act) to, resell any Act to permit compliance with Rule 144A in connection with resale of the Notes that have been acquired by any of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities ActSecurities.
(l) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba. (m) The Company and the Guarantors agree 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 Notes Series A Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the NotesSeries A Securities.
(m) In connection with any offer or sale of the Notes, the Company and the Guarantors will not engage, and will cause their respective affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, Guarantors hereby jointly and severally, agree severally agrees with each of the Initial Purchasers Purchaser as follows:
(a) The Company and the Guarantors will furnish to To advise the Initial PurchasersPurchaser promptly and, without charge, within one business day of the date of the Offering Circular, such number of copies of the Offering Circular as may then be amended or supplemented as they may reasonably request.
(b) The Company and the Guarantors will prepare the Offering Circular in a form approved if requested by the Initial Purchasers and will not make Purchaser, confirm such advice in writing, (i) of the issuance by any amendment or supplement to the Pricing Disclosure Package or to the Offering Circular of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised provided, that this clause shall not apply to any filing by the Company state securities commission of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q stop order suspending the qualification or Current Report on Form 8-K with respect to matters unrelated to the exemption from qualification of any Series A Notes or the offering.
(c) The Company and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Circular Series A Subsidiary Guarantees for offering or sale in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered any jurisdiction designated by the Initial Purchasers Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and by all dealers to whom Notes may be sold, in connection with the offering and sale (ii) of the Notes.
(d) If, at any time prior to completion happening of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, during the period referred to in Section 5(c) below that makes any statement of a material fact made in the judgment of the Company or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular so Memorandum untrue or that requires any additions to or changes in the Pricing Disclosure Package Preliminary Offering Memorandum or the Offering Circular, as then amended Memorandum in order to make the statements therein not misleading or supplemented, does not include any untrue statement of material fact its becomes necessary to amend or omit to state a material fact necessary supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement or amend the Pricing Disclosure Package or the Offering Circular in order Memorandum to comply with any applicable law, forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will comply with applicable law. The Company and the Guarantors shall use commercially reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Series A Notes or Series A Subsidiary Guarantees under any applicable state securities or Blue Sky laws and, if at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending 7 the qualification or exemption of any Series A Notes or Series A Subsidiary Guarantees under any state securities or Blue Sky laws, the Company and the Guarantors will forthwith prepare an appropriate supplement shall use commercially reasonable efforts to obtain the withdrawal or amendment lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Company as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, and will expeditiously furnish as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers Purchaser's compliance with its representations and dealers a reasonable number warranties and agreements set forth in Section 7 hereof, the Company consents to the use of copies thereofthe Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(ec) None During such period as an Offering Memorandum is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser and in connection with market-making activities of the Company or Initial Purchaser for so long as any Guarantor will Series A Notes (including Series A Subsidiary Guarantees) are outstanding, (i) not to make any offer amendment or supplement to sell or solicitation the Offering Memorandum of an offer to buy which the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representative, which consent Initial Purchaser shall not previously have been advised or to which the Initial Purchaser shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchaser's reasonable request, any amendment or supplement to the Offering Memorandum which may be unreasonably withheld necessary or delayed. If at any time following issuance of a Free Writing Offering Document advisable in connection with such Exempt Resales or such market-making activities.
(d) If, during the period referred to in Section 5(c) above, any event occurred shall occur or occurs condition shall exist as a result of which such Free Writing Offering Document conflicts with the information which, in the Preliminary Offering Circularopinion of counsel to the Initial Purchaser, the Pricing Disclosure Package it becomes necessary to amend or supplement the Offering Circular or, when taken together with the information in the Preliminary Offering Circular, the Pricing Disclosure Package or the Offering Circular, includes an untrue statement of a material fact or omits to state any material fact necessary Memorandum in order to make the statements therein, in the light of the circumstances then prevailingwhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, as promptly as practicable after becoming aware thereofor if, in the Company will give notice thereof opinion of counsel to the Initial Purchasers through Purchaser, it is necessary to amend or supplement the Representative andOffering Memorandum to comply with any applicable law, if requested by forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Representativestatements therein, as so amended or supplemented, will prepare not, in the light of the circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will comply with applicable law, and to furnish without charge to each the Initial Purchaser a Free Writing Offering Document or and such other document which will correct persons as the Initial Purchaser may designate such conflict, statement or omissionnumber of copies thereof as the Initial Purchaser may reasonably request.
(fe) Promptly from time Prior to time the sale of all Series A Notes (including Series A Subsidiary Guarantees) pursuant to take such action Exempt Resales as contemplated hereby, to cooperate with the Initial Purchasers may reasonably request Purchaser and counsel to qualify the Initial Purchaser in connection with the registration or qualification of the Series A Notes (including Series A Subsidiary Guarantees) for offering offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may commercially reasonably request and to comply with continue such laws registration or qualification in effect so long as required for Exempt Resales and to permit the continuance file such consents to service of sales and dealings therein in such jurisdictions for as long process or other documents as may be commercially reasonably necessary in order to complete effect such registration or qualification; provided, however, that neither the distribution of the Notes; provided that Company nor any Guarantor shall be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and 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.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company or any of the Guarantors shall not be required to (i) qualify its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company or any of the Guarantors is listed and such other publicly available information concerning the Company and/or its subsidiaries as foreign corporations in any jurisdiction in which they would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject themselves to taxation in any jurisdiction in which they would not otherwise be subjectthe Initial Purchaser may reasonably request.
(gh) For a period commencing on the date hereof and ending on the 60th day after the date So long as any of the Offering Circular, Series A Notes remain outstanding and during any period in which the Company and the Guarantors agree are not tosubject to Section 13 or 15(d) of the Securities Exchange Act of 1934, directly or indirectlyas amended (the "EXCHANGE ACT"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) offer for saleWhether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, sell, or otherwise dispose of (or enter into any device that is designed to, or would be expected to, result in the disposition (other than to the Company) by any person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, as applicable, or sell or grant options, rights or warrants with respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company, as applicable, or other securities, in cash or otherwise, (iii) file pay or cause to be filed a registration statement, including any amendments, with respect paid all expenses incident to the registration of debt securities performance of the Company substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities obligations of the Company or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representative, on behalf of the Initial Purchasers.
(h) The Company and the Guarantors will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Offering Circular under the caption “Use of Proceeds.”
this Agreement, including: (i) The Companythe fees, disbursements and expenses of counsel to the Company and the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security accountants of the Company or and the Guarantors in connection with the offering sale and delivery of the Notes.
Series A Notes (jincluding Series A Subsidiary Guarantees) The Company to the Initial Purchaser and pursuant to Exempt Resales, and all other fees and expenses in connection with the Guarantors will use their commercially reasonable efforts to permit the Notes to be eligible for clearance preparation, printing, filing and settlement through DTC.
(k) Until the second anniversary distribution of the Closing DatePreliminary Offering Memorandum, the Company Offering Memorandum and the Guarantors will not, all amendments and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell supplements to any of the Notes that have been acquired by any foregoing (including financial statements), including the mailing and delivering of them, except for Notes purchased by the Company, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(l) The Company and the Guarantors agree 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 Notes in a manner that would require the registration under the Securities Act of the sale copies thereof to the Initial Purchasers or Purchaser and persons designated by it in the Eligible Purchasers quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Notes.
Series A Notes (mincluding Series A Subsidiary Guarantees) In to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or reproducing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes (including Series A Subsidiary Guarantees) , (iv) all expenses in connection with the registration or qualification of the Series A Notes and the Series A Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or reproducing any offer preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and customary fees and disbursements of counsel for the Initial Purchaser in connection with such registration or sale qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes and the Series A Subsidiary Guarantees, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes 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, the Notes and the Subsidiary Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Notes, (x) all costs and expenses of the Company and the Guarantors will not engage, and will cause their respective affiliates Exchange Offer and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliatesRegistration Statement, as to whom the Company and the Guarantors make no covenant) not to engage (i) in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) or any public offering within the meaning of Section 4(a)(2) of the Securities Act in connection with any offer or sale of the Notes and/or (ii) in any directed selling effort with respect to the Notes within the meaning of Regulation S, and to comply with the offering restrictions requirement of Regulation S.
(n) The Company and the Guarantors agree to comply with all terms and conditions of the agreements set forth in the representation letters Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC hereunder for “book entry” transferwhich provision is not otherwise made in this Section.
(o) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’ obligations hereunder to purchase the Notes.
Appears in 1 contract
