Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows: (a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales. (b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement. (c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law. (d) To qualify or register the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject. (e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers. (g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds." (h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes. (i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers. (j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date. (k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes. (l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S. (m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents. (n) To comply with all of their agreements set forth in the Registration Rights Agreement. (o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer. (p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal. (q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request. (r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum. (s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended. (t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 3 contracts
Samples: Purchase Agreement (Norcraft Companies Lp), Purchase Agreement (Norcraft Companies Lp), Purchase Agreement (Norcraft Companies Lp)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities; (iii) one-half of all expenses (including the cost of any chartered airplane or other transportation) of the Issuers and the Initial Purchasers in connection with the “road show” for the offering of the Securities, (iiiiv) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (ivv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (vvi) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation inclusion of certificates for the NotesSecurities in the book-entry system of The Depository Trust Company (“DTC”), (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply cooperate with all of their obligations set forth in and assist the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts Initial Purchasers to obtain approval of the Original Notes by DTC Securities to be eligible for "book-entry" transferclearance and settlement through DTC.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not toWithout the prior consent of the Representatives, not to make, and not to permit any of their its affiliates or anyone acting on their its or their its affiliates behalf to (other than the Initial Purchasers and their affiliates)make, distribute prior any offer relating to the Closing Date any Securities that, if the offering material in connection of the Securities contemplated by this Agreement were conducted as a public offering pursuant to a registration statement filed under the Act with the Commission, would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act (any such offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandumis hereinafter referred to as a “Company Supplemental Disclosure Document”).
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 45 days after the date hereof, without the prior written consent of this Section 4Xxxxxxx Xxxxx (which consent may be withheld at the sole discretion of Xxxxxxx Xxxxx), solely with to not, directly or indirectly, offer, sell, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Act in respect to of, any person who is selling an ownership interest in debt securities of the Company or any Subsidiary or any securities exchangeable for or convertible into debt securities of the Company or any Subsidiary (other than as contemplated by this Agreement and to Holdings pursuant to register the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenantsExchange Securities).
Appears in 2 contracts
Samples: Purchase Agreement (Basic Energy Services Inc), Purchase Agreement (Basic Energy Services Inc)
Agreements of the Issuers. The Issuers, jointly Each of the Issuers covenants and severally, covenant and agree agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to 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, 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 Preliminary Offering Memorandum or the Offering Memorandum untrue or that requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. The Issuers shall use their respective best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any 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 from qualification of any Notes under any state securities or Blue Sky laws, the Issuers shall use their respective best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial PurchasersPurchasers to the Issuers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementhereto, by the Initial Purchasers in connection with Exempt Resales.
(bc) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Preliminary Offering Memorandum prior 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 Closing Date Initial Purchasers for so long as any Notes are outstanding unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof (except to the extent that any such amendment or supplementsupplement objected to is necessary, in the opinion of counsel to the Issuers, to make the statements made in the Preliminary Offering Memorandum or Offering Memorandum, not misleading). The Issuers 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 such Exempt Resales or such market-making activities (except to the extent that any such amendment or supplement requested would, in the opinion of counsel to the Issuers, render the statements made in the Preliminary Offering Memorandum or Offering Memorandum, as proposed to be amended or supplemented, misleading).
(cd) If, prior during the period referred to the time that the Initial Purchasers have completed their distribution of the Original Notesin 4(c) above, any event shall occur thatas a result of which, in the judgment of the Company Issuers or in the judgment reasonable opinion of counsel to for the Issuers or counsel for the Initial Purchasers, makes any statement of a material fact in it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum, as then amended Memorandum or supplemented, 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, as then amended or supplementedtherein, in the light of the circumstances under which they are madethen existing, not misleading, or if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable any law, the Company shall promptly statute, or rule or regulation of any govern mental agency or entity, (i) to notify the Initial Purchasers of such event and (subject ii) forthwith to Section 4(b)) prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or the Offering Memorandum so that (i) the statements in the Offering Memorandum, therein as so amended or supplemented, willsupplemented will not, in the light of the circumstances at the time when it is so delivered, be misleading, or so that the such Preliminary Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) or the Offering Memorandum will comply with applicable law.
. (de) To qualify cooperate with the Initial Purchasers and counsel for the Initial Purchasers in connection with the qualification or register registration of the Original Notes for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification or registration in effect so long as required for the Exempt Resales. Notwithstanding the foregoing; provided, no however, that neither Issuer shall be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which or limited liability company, as applicable, where it is not now so qualified or to execute take any action that would subject it to a general consent to service of process in any such jurisdiction suits or subject itself taxation, in each case, other than as to taxation in excess of a nominal dollar amount matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any such jurisdiction where it is not then now so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses fees and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and the performance of the obligations of the Issuers hereunder, including in connection with: (i) the preparation, printing printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements theretothereto required pursuant hereto, (ii) all expenses the preparation (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notesincluding, (iii) the preparationwithout limitation, notarization (if necessaryduplication costs) and delivery of the Note Documents all agreements, correspondence and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement herewith and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, including any transfer or other taxes payable thereon, (viv) the qualification or registration of the Notes and for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada jurisdictions referred to in Section 4(e) (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda Memorandum and the reasonable fees and disbursements of counsel (including local counsel) to for the Initial Purchasers relating thereto), (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesNotes (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Issuers' counsel and accountants, (viii) all fees and expenses (including fees and expenses of counsel) of the application for quotation Issuers in connection with the approval of the Notes in The Portal Market by DTC for "book-entry" transfer, ("Portal"ix) rating the Notes by rating agencies, (x) any fees payable for the review of the National Association of Securities Dealers, Inc. (the "NASD"), including, but not limited to, all listing fees ) in connection with the initial and expenses, (ix) the approval continued designation of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) as PORTAL Securities under the rating of the Notes by rating agenciesPORTAL Market Rules pursuant to NASD Rule 5322, (xi) the reasonable fees and expenses of the Trustee and its counsel and counsel, (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated and the other than Operative Documents, (xiii) any and all other additional fees and expenses incurred by reason the Issuers and (xiv) one-half of a default by either the out-of-pocket expenses of the Initial Purchasers, excluding the Issuers shall pay the fees, fees and expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum (and any amendments or supplements thereto) under the caption "Use of proceedsProceeds."
(h) To use their reasonable best efforts Not to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date voluntarily claim, and to satisfy all conditions precedent on their part resist actively any attempts to claim, the delivery benefit of any usury laws against the Original holders of any Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy or otherwise negotiate and to cause the Trading Cove Associates, a Connecticut general partnership (the "Manager"), not to engage in such activities in respect of any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or the Eligible Purchasers of the Notes or to take any Eligible Purchasersother action and to cause the Manager not to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for For so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company is Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes thereof and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated owner, the information required by Rule 144A(d)(4) under the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documentsAct.
(nk) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers representation letters to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(pl) To use their reasonable respective best efforts to effect the inclusion of the Original Notes in PortalPORTAL and to obtain approval of the Notes by DTC for "book-entry" transfer.
(qm) 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 either Issuer shall mail or otherwise make available to their respective securityholders and (ii) all reports, financial statements and proxy or information statements filed by the Issuers with the Securities and Exchange Commission (the "Commission") or any national securities exchange and such other publicly available information concerning either Issuer, including without limitation, press releases.
(n) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared in the ordinary course by Holdingsthe Issuers, a copy copies of any regularly prepared internal unaudited interim financial statements of the Company and its subsidiaries for any period subsequent to the period periods covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(ro) Not to take, directly or indirectly, any action designed to, and not or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of either Issuer to permit any facilitate the sale or resale of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), Notes. Neither Issuer will distribute prior to the Closing Date any (i) preliminary offering memorandum, other than the Preliminary Offering Memorandum, (ii) offering memorandum, other than the Offering Memorandum, or (iii) other offering material in connection with the offer offering and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering MemorandumNotes.
(sp) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their reasonable best efforts (including through to do and perform all things required or necessary to be done and performed under this Agreement prior to the enforcement Closing Date and to satisfy all conditions precedent to the delivery of their rights under the UPA) to cause such person to comply with such covenantsNotes.
Appears in 2 contracts
Samples: Purchase Agreement (Waterford Gaming LLC), Purchase Agreement (Waterford Gaming Finance Corp)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement without the written consent of the Representatives. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) IfSubject to Section 4(q), if, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that of the Offering Memorandum is delivered to prospective Eligible Purchaserssale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants; provided, however, that the Company is obligated to pay only fifty percent (including travel expenses50%) of the Issuers cost and expense of any aircraft chartered in connection with any meetings with prospective investors in the Original Notesroad show, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies inclusion of the Preliminary Offering Memorandum and Securities in the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resalesbook-entry system of DTC, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiviii) the fees and expenses of the Trustee and its counsel and (xiiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Preliminary Offering Memorandum under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph Section 4(l) have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "book-“book entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "book-“book entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qo) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iiiii) such other information as the Initial Purchasers shall reasonably request.
(rp) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any electronic roadshow and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Representatives and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(sq) During the period of two years one year after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-closed end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tr) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything Securities.
(s) During the period from the date hereof through and including the date that is 90 days after the date hereof, without the prior written consent of Deutsche Bank Securities Inc., offer, sell, contract to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) sell or otherwise dispose of this Section 4, solely with respect to any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement or any Subsidiary and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 2 contracts
Samples: Purchase Agreement (Hercules Offshore, Inc.), Purchase Agreement (Hercules Offshore, Inc.)
Agreements of the Issuers. (i) The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, Memorandum by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not Pricing Supplement; not to amend or supplement the Preliminary Offering Memorandum (except by the Pricing Supplement) or the Pricing Supplement; not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Pricing Disclosure Package or the Final Offering Memorandum, as either is then amended or supplemented, untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package or Final Offering Memorandum in order to make the statements in the Pricing Disclosure Package or the Final Offering Memorandum, as either is then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package or the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b4(i)(b)) prepare an appropriate amendment or supplement to the Pricing Disclosure Package or the Final Offering Memorandum so that (i) the statements in the Pricing Disclosure Package or Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Pricing Disclosure Package and the Final Offering Memorandum will comply with applicable law.
(d) Whether or not the transactions contemplated by this Agreement are consummated, to pay all costs, expenses, fees and disbursements (including fees and disbursements of counsel and accountants for the Issuers) incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum, the Pricing Supplement, any Issuer Written Communication and the Final Offering Memorandum and any amendments or supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Securities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Issuers to the Initial Purchasers, (v) the qualification or registration of the Securities for offer and sale under the securities laws of the several states of the United States (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the application for quotation of the Securities in The PORTAL Market (“Portal”) of The Nasdaq Stock Market, (vii) the inclusion of the Securities in the book-entry system of DTC, (viii) the rating of the Securities by rating agencies, (ix) the fees and expenses of the Trustee and its counsel (x) all expenses and application fees related to the listing of the Underlying Securities on The Nasdaq Global Select Market and (xi) the performance by the Issuers of their other obligations under the Note Documents. For the avoidance of doubt, the Issuers’ obligations under this Section 4(d) shall not affect any expense sharing or contribution arrangements they may have with each other.
(e) To use its best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Securities.
(f) Not to, and not to permit any of their subsidiaries nor any of their affiliates (as defined in Rule 501(b) of Regulation D under the Act) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale of the Securities to the Initial Purchasers or any Eligible Purchasers.
(g) Not to, and to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Securities that have been reacquired by any of them.
(h) Not to engage, not to allow any subsidiary to engage, and to cause their other 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 Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Securities in the United States.
(i) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) all reports and other communications (financial or otherwise) that the Issuers mail or otherwise make available to its security holders to the extent not available on XXXXX or the Issuers’ websites and (ii) such other information as the Initial Purchasers shall reasonably request.
(j) Not to, and not to permit any of its affiliates or anyone acting on its or its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Securities other than the Preliminary Offering Memorandum, the Pricing Supplement, any “road show” (as defined in Rule 433 under the Securities Act) and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Issuers will furnish to the Initial Purchasers and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Initial Purchasers reasonably object.
(k) During the period of two years after the Closing Date or, if earlier, until such time as the Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(l) In connection with the offering, until the Initial Purchasers shall have notified the Issuers of the completion of the distribution of the Securities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which it or any of their affiliates has a beneficial interest, for the purpose of creating actual or apparent active trading in, or of raising the price of, the Securities.
(m) not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities or the Sirius Common Stock and to not take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(ii) The Company and the Guarantors, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(eb) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(gc) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(md) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company XM Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer XM Holdings will pay the expenses of preparing, printing and distributing such documents.
(ne) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "“book-entry" ” transfer.
(pf) To use their reasonable best efforts to effect the inclusion of the Original Notes Securities in Portal.
(qg) Prior to During the Closing Dateperiod from the date hereof through and including the date that is 90 days after the date hereof, to furnish without charge to the prior written consent of each of the Initial Purchasers, (i) as soon as they have been received offer, sell, contract to sell or otherwise dispose of in any transaction required to be registered under the Act or pursuant to Rule 144A, any debt securities issued or guaranteed by XM Holdings, a copy of any regularly prepared internal financial statements of the Company or any XM Subsidiary and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandumhaving a tenor of more than one year, (ii) copies of all other reports and other communications (financial or otherwise) provided, however, that the Company mails or otherwise make available foregoing restriction shall not apply to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material debt securities issued in connection with the offer Refinancing Transactions or a letter of credit or other collateral used to replace the MLB escrow arrangement, in an amount not to exceed $120.0 million.
(iii) Sirius covenants and sale agrees with the Initial Purchasers as follows:
(a) For a period of 90 days after the date of the Original Notes offering of the Securities, Sirius will not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Sirius Common Stock or any securities convertible into or exercisable or exchangeable for Sirius Common Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Sirius Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Sirius Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Initial Purchasers, other than the Preliminary Offering Memorandum Securities to be sold hereunder and any shares of Sirius Common Stock issued upon the exercise of options granted under existing employee stock option plans, outstanding convertible and equity-linked securities (including such securities issued by Holdings and the Offering MemorandumCompany), or pursuant to the Merger or in related to the Share Borrow Transaction.
(sb) During the period of two years after the Closing Date orTo maintain a transfer agent and, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 necessary under the Act)jurisdiction of incorporation of Sirius, not to be or become a closed-end investment company required to be registered, but not registered, under registrar for the Investment Company Act of 1940, as amendedSirius Common Stock.
(tc) In connection with the offeringTo at all times reserve and keep available, until the Initial Purchasers shall have notified the Company free of preemptive rights, shares of Sirius Common Stock in an amount equal to Sirius Common Stock deliverable upon exchange of the completion of the resale of the Notes, not to, and not to permit any of their affiliates Exchangeable Notes then outstanding.
(as such term is defined in Rule 501(bd) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their reasonable its best efforts (including through the enforcement of their rights under the UPA) to cause such person the Underlying Securities to comply with such covenantsbe listed on The NASDAQ Global Select Market.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Sirius Xm Radio Inc.)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use (or such shorter time as may be necessary under the circumstances), and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have Purchaser has completed their its distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register furnish such information as may be required and otherwise to cooperate in qualifying the Original Notes Securities for offering and sale under the securities or blue sky laws of such jurisdictions states as the Initial Purchasers Purchaser may request designate and to continue maintain such qualification qualifications in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, ; provided that no Issuer shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Securities); and to promptly advise you of the receipt by any Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction in which it is not so qualified or to execute a general consent to service the initiation or threatening of process in any proceeding for such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectpurpose.
(e) To advise the Initial Purchasers promptly andPurchaser promptly, and if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all reasonable costs, expenses, fees, fees and disbursements (including fees, expenses reasonable fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchaser in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial PurchasersPurchaser, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and reasonable fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes Securities in The Portal PORTAL Market ("Portal"“PORTAL”) of the National Association of Securities Dealers, Inc. ("“NASD"”), including, but not limited to, all listing fees and expenses, (ixvii) the approval inclusion of the Notes by Securities in the book-entry system of The Depository Trust Company ("“DTC") for "book-entry" transfer”), (xviii) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by Except as provided in this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial PurchasersSection 4(f) and Section 9(d), the Issuers shall pay the feesnot be responsible for your expenses, including expenses and disbursements of counsel to the Initial Purchasersyour counsel.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of Parent and the Company and its subsidiaries Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders generally and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(rq) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates affiliates’ behalf to (other than the Initial Purchasers Purchaser, its agents and their its affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum, it being understood that filing documents incorporated by reference into the Offering Memorandum with the Securities and Exchange Commission (the Offering Memorandum“Commission”) shall not be considered a distribution for purposes of this clause so long as all other provisions of this Agreement applicable to such filing are complied with.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their reasonable best efforts to effect the inclusion of the Securities in PORTAL.
(u) Except as provided in the Registration Rights Agreement, during the period from the date hereof through and including through the enforcement date that is 90 days after the date hereof, without the prior written consent of their rights under the UPAInitial Purchaser, offer, sell or contract to sell any debt securities issued or guaranteed by any Issuer and having a tenor of more than one year; it being understood that term loans and revolving credit facilities with financial institutions and institutional lenders and construction loans in the ordinary course of business shall not constitute “debt securities” for purposes of this clause.
(v) To furnish to cause you promptly for a period of three years from the date of this Agreement (i) copies of any reports or other communications required to be furnished to holders of the Notes pursuant to the Indenture, (ii) copies of documents or reports filed with any national securities exchange on which any class of securities of any Issuer is listed, without exhibits unless requested, and (iii) such person to comply with other information as you may reasonably request regarding any Issuer, it being understood that the filing of any materials on XXXXX or any similar electronic delivery service of the Commission shall constitute furnishing such covenantsmaterial for purposes of this clause.
Appears in 2 contracts
Samples: Purchase Agreement (William Lyon Homes), Purchase Agreement (William Lyon Homes)
Agreements of the Issuers. The IssuersInitial Issuer, prior to the Acquisition, and the Surviving Corporation and the Guarantors, jointly and severally, following the consummation of the Acquisition, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes or additions to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes and additions to reflect pricing information with respect to the Notes Securities and (ii) such other changes and additions as to which the Representative shall have consentedconsented (such consent not to be unreasonably withheld or delayed). Not to amend or supplement the Offering Memorandum prior to the Closing Date unless (i) the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and (ii) shall not have objected to, or shall have consented to (such consent not to be unreasonably withheld or delayed), such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur thatand, as a result thereof, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, would include any untrue statement of a material fact or that requires the making of any additions omit to or changes in the Offering Memorandum state a material fact necessary in order to make the statements in the Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and and, if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred in connection with the performance of the obligations of the Issuers under this Agreement and all stamp, documentary or similar taxes incident to and in connection withtherewith, including, those relating to: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original NotesSecurities (including rental costs of airplanes used to transport representatives of the Initial Issuer, the Company and the Initial Purchasers to such meetings), (iii) the preparationpreparation (except to the extent prepared by counsel to the Initial Purchasers), notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and reasonable fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes Securities in The Portal PORTAL(SM) Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixvii) the approval inclusion of the Notes by Securities in the book-entry system of The Depository Trust Company ("DTC") for "book-entry" transfer), (xviii) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers of their other obligations under the Note Documents. In additionExcept as specifically provided in this Section 4(f), if the Initial Purchasers shall pay all of their own expenses (including all of the fees and disbursements of counsel) in connection with the preparation of this Agreement and the other Note Documents, the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses hereby and disbursements of counsel to the Initial Purchasersthereby and all Exempt Resales.
(g) To use the net proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their the Company's or the Surviving Corporation's subsidiaries listed on Schedule III attached hereto (each, a "SUBSIDIARY" and collectively, the "SUBSIDIARIES") to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(ji) Not to permit any Issuer During the period of two years immediately following the Closing Date, not to, and to cause their other affiliates respective controlled "affiliates" (as defined in Rule 144 under the Act), Parent and THL Buildco Holdings, Inc. (which after the Mergers will be renamed "Nortek Holdings, Inc." and become the new parent of the Surviving Corporation) not to to, resell any of the Original Notes that have been reacquired by any of them, and Securities that constitute "restricted securities" under Rule 144, 144 that have been reacquired by any of them (other than to an Issuer or an affiliate of any Issuer for in a period of two years after transaction registered under the Closing DateAct).
(kj) Not to engage, not to allow any of their subsidiaries to engage, and to cause the Subsidiaries and their other affiliates respective controlled affiliates, Parent and THL Buildco Holdings, Inc. or any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their controlled affiliates, Parent and THL Buildco Holdings, Inc., as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(lk) Not to engage, not to allow any of their subsidiaries to engage, and to cause the Subsidiaries and their other affiliates respective controlled affiliates, Parent and THL Buildco Holdings, Inc. or any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their controlled affiliates, Parent and THL Buildco Holdings, Inc., as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(ml) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company Surviving Corporation is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Surviving Corporation will pay the reasonable expenses of preparing, printing and distributing such documents.
(nm) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(on) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "book-entry" transfer and to use their reasonable best efforts to obtain approval of the Original Notes Securities by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qo) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company and furnished to the Initial Issuer, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumMemorandum that are furnished to the Initial Issuer, (ii) copies of as soon as they have been furnished to the Initial Issuer, all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rp) Not to, and not to permit cause any of their affiliates respective controlled affiliates, Parent and THL Buildco Holdings, Inc. or anyone acting on their or their affiliates such person's behalf to (other than the Initial Purchasers and their affiliates)) not to, distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sq) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tr) In connection with the offering, until the Initial Purchasers shall have notified the Company Surviving Corporation of the completion of the resale distribution of the NotesSecurities, not to, and not to permit cause any of their affiliates its controlled "affiliates" (as such term is defined in Rule 501(b) of Regulation D under the Act) and THL Buildco Holdings, Inc. not to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, Securities.
(j), (k), (l), (rs) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their reasonable best efforts to effect the inclusion of the Securities in Portal.
(t) During the period from the date hereof through and including through the enforcement date that is 90 days after the date hereof, without the prior written consent of their rights under the UPA) Representative, offer, sell, contract to cause such person sell or otherwise dispose of any debt securities issued or guaranteed by the Company, the Initial Issuer, Parent, THL Buildco Holdings, Inc., the Surviving Corporation or any Subsidiary and having a tenor of more than one year, other than debt instruments issued to comply with such covenantssellers of property, capital lease obligations, and credit facilities used for working capital or to finance acquisitions.
Appears in 1 contract
Samples: Purchase Agreement (Nutone Inc)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum Memorandum, or file any document with the Commission which upon filing will become an Incorporated Document, prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement supplement, or filing, at least two business days prior to the proposed use use, or filing, and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree Each of the Issuers agrees with each of the Initial Purchasers as followsPurchasers:
(a) To prepare each of the Time of Sale Information and the Offering Memorandum in a form approved by you; to make no amendment or any supplement to any of the Time of Sale Information or the Offering Memorandum which shall not be approved by you promptly after reasonable notice thereof; and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Notes for offering and sale under the securities laws of such jurisdictions as you 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 Issuers shall not be required to qualify as a foreign corporation or limited liability company, as the case may be, or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum, any other Time of Sale Information and the Offering Memorandum and each amendment or supplement thereto signed by an authorized officer of each of the Issuers with the independent accountants’ reports in each of the Time of Sale Information and the Offering Memorandum, and any amendment or supplement containing amendments or supplements theretoto the financial statements covered by such reports, signed by the accountants, and additional copies thereof in, such quantities as the Initial Purchasers you may from time to time reasonably request. Holdings, the Company and the Co-Issuer consent (1) if, at any time prior to the use expiration of nine months after the Preliminary Offering Memorandum and date of the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in event shall have occurred as a result of which the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend then amended or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any supplemented would include an untrue statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue or that requires the making of omit to state any additions to or changes in the Offering Memorandum material fact necessary in order to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are madewere made when such Offering Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or desirable during such same period to amend or supplement the Offering Memorandum, to notify you and upon your request to prepare and furnish without charge to each Purchaser and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Offering Memorandum or a supplement to the Offering Memorandum which will correct such statement or omission or effect such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Offering Memorandum to comply with applicable law, the Company shall promptly notify the Initial Purchasers Time of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum Sale Information so that (i) any of the Time of Sale Information will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements in the Offering Memorandum, as amended or supplemented, willtherein, in the light of the circumstances at under which they were made, not misleading, to immediately notify you thereof and forthwith prepare and, subject to paragraph (a) above, furnish without charge to each Purchaser such amendments or supplements to any of the time Time of Sale Information as may be necessary so that the Offering Memorandum is delivered to prospective Eligible Purchasersstatements in any of the Time of Sale Information as so amended or supplemented will not, not in the light of the circumstances under which they were made, be misleading and (ii) the Offering Memorandum will comply with applicable law.misleading;
(d) To qualify Before using, authorizing, approving or register referring to any written communication that constitutes an offer to sell or a solicitation of an offer to buy the Original Notes under (an "Issuer Written Communication") (other than written communications that are listed on Annex I hereto and the securities laws Offering Memorandum), to furnish to the Representative and counsel for the Purchasers a copy of such jurisdictions as the Initial Purchasers may request written communication for review and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoingnot use, no Issuer shall be required authorize, approve or refer to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself written communication to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectwhich the Representative reasonably objects.
(e) To advise During the Initial Purchasers promptly andperiod beginning from the date hereof and continuing until the date 90 days after the Time of Delivery, if requested by the Initial Purchasersnot to, and not permit any of its affiliates or anyone au- thorized to confirm such advice in writing, act on behalf of the issuance by Issuers or their affiliates to, without the prior written consent of X.X. Xxxxxx Securities Inc., offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Issuers that are substantially similar to the Notes other than as provided in the Exchange and Registration Rights Agreement and for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers shall use their reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any private exchanges of the Original Issuers’ 10.250% Senior Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original due 2010 for Holdings’ 8.750% Senior Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timedue 2007.
(f) Whether Not to be or not become, at any time prior to the transactions contemplated by this Agreement are consummated expiration of two years after the Time of Delivery, an open-end investment company, unit investment trust, closed-end investment company or this Agreement becomes effective face-amount certificate company that is or is terminated, required to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution be registered under Section 8 of the Preliminary Offering Memorandum and Investment Company Act;
(g) If such documents are not then available on the Offering Memorandum and all amendments and supplements theretoCommission’s XXXXX Database, (ii) all expenses (including travel expenses) during a period of three years from the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery date of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, to furnish or make electronically available to you, copies of all reports or other communications (financial or other) furnished generally to holders of a publicly traded class of ownership interests of the Issuers or CCI, and all amendments and supplements theretoto furnish or make electronically available to you, as may be reasonably requested for use in connection soon as they are available, of any reports and financial statements furnished to or filed with Exempt Resales, (vii) the preparation Commission or any securities exchange on which the Notes or any class of certificates for the Notes, (viii) the application for quotation securities of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement CCI is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."listed;
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or During the period of two years after the Closing Date Time of Delivery, to not, and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates "affiliates" (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes which constitute "restricted securities" under Rule 144 that have been reacquired by any of them;
(i) To use the net proceeds received from the sale of the Notes pursuant to this Agreement in the manner specified in each of the Time of Sale Information and the Offering Memorandum under the caption "Use of Proceeds";
(j) To not, and that constitute "restricted securities" under Rule 144, to not permit any affiliate nor any person authorized to act on its behalf (other than the Purchasers, as to an Issuer or an affiliate whom the Issuers take no responsibility) to engage in any directed selling efforts with respect to the Notes in contravention of, and to comply with, the applicable offering restrictions requirement of any Issuer for a period of two years after Regulation S. Terms used in this paragraph have the Closing Datemeanings given to them by Regulation S;.
(k) Not to engage, To not to allow any of their subsidiaries to engage, and to cause their other affiliates and not permit any affiliate nor any person acting authorized to act on their its behalf (other than, in any case, than the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company Issuers take no responsibility) to, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Act, except pursuant to the Exchange and Registration Rights Agreement;
(l) To not and to not permit any affiliate nor any person authorized to act on its behalf (other than the Co-Issuer make Purchasers, as to whom the Issuers take no covenantresponsibility) not to engageto, engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the ActD) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.States;
(m) From Except as otherwise permitted by Regulation M under the Exchange Act, to not and after to not permit any affiliate nor any person authorized to act on its behalf to, take, directly or indirectly, any action designed to or which has constituted or which would reasonably be expected to cause or result, under the Closing DateExchange Act or otherwise, for so long as any in stabilization or manipulation of the Notes remain outstanding and are "restricted securities" within the meaning price of Rule 144(a)(3) under the Act and during any period in which the Company is not subject to Section 13 or 15(d) security of the Securities Exchange Act Issuers to facilitate the sale or resale of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.Notes; and
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with Time of Delivery to cause the offer and sale Notes to be eligible for the PORTAL trading system of the Original Notes other than the Preliminary Offering Memorandum and the Offering MemorandumNASD.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (Charter Communications Inc /Mo/)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Company Holdings shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no neither Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors Issuers of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("“Portal"”) of the National Association of Securities Dealers, Inc. ("“NASD"”), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("“DTC"”) for "“book-entry" ” transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "“restricted securities" ” under Rule 144, other than to an Issuer or an affiliate of any either Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Holdings and the Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Holdings and the Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 Act and during any period in which the Company Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company Holdings and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company Holdings and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company Holdings mails or otherwise make makes available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company Holdings of the completion of the resale of the Notes, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor Issuers or any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly Company and severally, the Subsidiary Guarantors covenant and agree with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably requestrequest for purposes contemplated by the Act. Holdings, the The Company and the Co-Issuer consent 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 the Initial Purchasers Purchaser in connection with Exempt ResalesResales that are in compliance with Section 4(B) of this Agreement.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have objected to (any such objection not to be unreasonable), such amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished with a copy of such amendment or supplement. The Company shall promptly prepare, upon the Initial Purchaser's reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event shall occur that, in the judgment of the Company or any of the Subsidiary Guarantors or in the judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company and the Subsidiary Guarantors shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, Memorandum as amended or supplemented, supplemented will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register furnish such information as may be required and otherwise to cooperate with the Original Initial Purchaser and counsel to the Initial Purchaser in qualifying the Notes and Exchange Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to continue maintain such qualification in effect so long as required for the Exempt Resales. Notwithstanding ; provided that neither the foregoing, no Issuer Company nor any Subsidiary Guarantor shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
subject (e) To except service of process with respect to the offering and sale of the Notes and Exchange Notes); and to promptly advise the Initial Purchasers promptly and, if requested Purchaser of the receipt by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification Company or exemption from qualification of any of the Original Subsidiary Guarantors of any notification with respect to the suspension of the qualification of the Notes or Exchange Notes for offering or sale in any jurisdiction, jurisdiction or the initiation or threatening of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timepurpose.
(fe) 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, disbursements (including fees, expenses and disbursements of counsel to the Issuerscounsel) reasonably incurred and stamp, documentary or similar taxes imposed by the U.S. incident to and in connection with: (i) the preparation, printing printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) preparation and delivery of the Note Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Company and the Co-Issuer and the Subsidiary Guarantors of the Original Notes and the GuaranteeSubsidiary Guarantees, respectively, to the Initial PurchasersPurchaser, (viv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda memorandum and the fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesNotes and Exchange Notes (including, without limitation, printing and engraving thereof), (viiivii) the application for quotation eligibility of the Notes for trading in The Portal Market the Private Offerings, Resales and Trading through Automated Linkages ("PortalPORTAL") market of the National Association of Securities Dealers, Inc. ------ ("NASD"), including, but not limited to, all listing application fees and expenses, ---- (ixviii) the approval of the Notes and Exchange Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (xix) the rating of the Notes and --- Exchange Notes by rating agencies, (xix) the fees and expenses of the Trustee and its counsel and (xiixi) the performance by the Issuers Company and the Subsidiary Guarantors of their other obligations under the Note Operative Documents. In addition, if the transactions contemplated by this Agreement are including, but not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchaserslimited to, the Issuers shall pay the fees, disbursements and expenses of the Company's counsel and disbursements of counsel to the Initial Purchasersaccountants.
(gf) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(hg) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them it prior to or after the Closing Date and to satisfy all conditions precedent on their its part to the delivery of the Original Notes.
(ih) Not to, and not to permit any of their subsidiaries 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 Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(mi) 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 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 upon request the information required by ------------ Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(nj) To comply with all of their its agreements set forth in the Registration Rights Agreement.
(o) To comply with Agreement and all of their obligations agreements set forth in the representations letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(pk) To use their reasonable its best efforts to effect the inclusion eligibility of the Original Notes for trading in Portalthe PORTAL market and to obtain approval of the Notes by DTC for "book-entry" transfer.
(ql) From and after the Closing Date, for so long as any of the Notes remain outstanding, to deliver without charge to the Initial Purchaser, promptly upon their becoming available, copies of (i) all reports and other communications (financial or otherwise) that the Company shall mail or otherwise make available to its security holders, (ii) all reports or financial statements furnished to or filed by the Company and each of the Subsidiary Guarantors with the Commission or any national securities exchange and (iii) such other information as the Initial Purchaser may reasonably request regarding the Company and its subsidiaries.
(m) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received prepared by Holdingsthe Company and the Subsidiary Guarantors, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries each of the Subsidiary Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports Memorandum and other communications (financial or otherwise) that prior to the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably requestClosing Date.
(rn) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, Each of the Issuers jointly and severally, covenant and agree severally agrees with the Initial several Purchasers as followsthat:
(a) To furnish The Issuers will advise you promptly of any proposal to amend or supplement the Initial Purchasers and those persons identified by Registration Statement or the Initial Purchasers, without charge, Prospectus with as many copies of the Preliminary Offering Memorandum and the Offering Memorandumrespect to any Purchased Preferred Securities, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer consent will furnish you a copy thereof prior to the use of filing thereof with the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt ResalesCommission.
(b) Not The Issuers will furnish to make any changes you copies of the registration statement relating to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than Preferred Securities as originally filed and all amendments thereto (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the proposed use Commission), each related prospectus, the Prospectus, and shall not have objected all amendments and supplements to such amendment or supplementdocuments (except supplements relating to Preferred Securities that are not Purchased Preferred Securities), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the Act.
(c) If, prior If at any time when a prospectus relating to the time that Purchased Preferred Securities is required to be delivered under the Initial Purchasers have completed their distribution of Act or the Original NotesRules and Regulations, any event shall occur that, in occurs as a result of which the judgment of the Company Prospectus as then amended or in the judgment of counsel to the Initial Purchasers, makes supplemented would include any untrue statement of a material fact, or omit to state a material fact in the Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Offering Memorandum in order necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are made, not misleading, or if it is necessary at any time to amend or supplement the Offering Memorandum Prospectus to comply with applicable lawthe Act or the Rules and Regulations, the Company shall Issuers will promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) promptly prepare and file with the Commission an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended Registration Statement or supplemented, will, in the light any appropriate filing pursuant to Section 13 or 14 of the circumstances Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations; provided that the Issuers shall be so obligated only so long as the Issuers are notified of unsold allotments (failure by the Purchasers to so notify the Issuers cancels the Issuers' obligation under this Section 4(c)); and provided further that any such Prospectus or amendment or supplement required later than nine months from the date hereof shall be furnished at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law' sole expense.
(d) To The Issuers will cooperate with the Purchasers in taking such action as may be necessary to qualify or register the Original Notes Purchased Preferred Securities for offering and sale under the securities laws of such jurisdictions any state or jurisdiction of the United States as the Initial Purchasers may reasonably request and will use its best efforts to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding distribution of the foregoingPurchased Preferred Securities; provided, no Issuer however, that neither of the Issuers shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified corporation, or to execute file a general consent to service of process process, in any such state or jurisdiction or subject itself to taxation in excess of a nominal dollar amount in comply with any such jurisdiction where it is not then so subjectother requirement deemed by the Issuers to be unduly burdensome.
(e) To advise The Company will make generally available to its security holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Initial Purchasers promptly and, if requested by Act) covering a period of twelve months after the Initial Purchasers, to confirm such advice in writing, effective date of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timeRegistration Statement.
(f) Whether For a period of three years, the Company will furnish to you copies of any report or not definitive proxy statement which the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and Company shall file with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale Commission under the securities laws of the several states of the United States or provinces of Canada (includingExchange Act, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of all reports and communications which shall be sent to stockholders generally, at or about the Preliminary Offering Memorandum time such reports and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement information are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel first furnished to the Initial Purchasersstockholders generally.
(g) To use The Trust will apply the net proceeds from the sale offering of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum Purchased Preferred Securities as set forth under the caption "Use of proceedsProceeds" in the Prospectus Supplement."
(h) To use their reasonable best efforts to do and perform all things required If a public offering of the Purchased Preferred Securities is to be done and performed under this Agreement by them made, neither of the Issuers will offer or sell any of its other securities which are substantially similar to the Purchased Preferred Securities or the Corresponding Debt Securities prior to or ten business days after the Closing Date and to satisfy all conditions precedent on their part to without the delivery consent of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (Empire District Electric Trust Ii)
Agreements of the Issuers. The Issuers, jointly Each of the Issuers severally covenants and severally, covenant and agree agrees with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, Each of the Company and the Co-Issuer consent Issuers 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 the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall Purchaser has previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have Purchaser has notified the Issuers that it has completed their its distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, that makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws known to the Issuers, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at as of the time that of the Offering Memorandum is delivered to prospective Eligible Purchasers, amendment or supplement will not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers Purchaser may reasonably request and to continue such qualification in effect so long as reasonably required for the Exempt Resales. Notwithstanding the foregoing, no Issuer neither of the Issuers shall be required to qualify as a foreign corporation or other business entity in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Each of the Issuers shall use their its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, each of the Issuers shall use their its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, disbursements (including reasonable fees, expenses and disbursements of each of the counsel to the IssuersIssuers and the Initial Purchaser) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchaser in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and by the Guarantee, respectively, Issuers to the Initial PurchasersPurchaser, (v) (subject to Section 4(d)) hereof, the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees fees, and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating theretothereto up to $20,000), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Original Notes and the Exchange Notes in The Portal PORTAL Market ("Portal"“PORTAL”) of the National Association of Securities Dealers, Inc. ("“NASD"”), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") the DTC for "“book-entry" ” transfer, (x) the rating of the Notes by investment rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes substantially in substantially the manner described in the Offering Memorandum under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them it prior to or after the Closing Date and to use its reasonable best efforts to satisfy all conditions precedent on their its part to the delivery of the Original Notes.
(i) Not to, and not to permit cause any of their its subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use its reasonable best efforts to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them; provided, and that, affiliates of the Issuers may resell any Original Notes that constitute "restricted securities" under Rule 144, other than have been acquired by such affiliate so long as such resale (i) is made pursuant to an Issuer exemption from the registration requirements of the Act or an affiliate a transaction registered under the Act and (ii) such Original Notes, when resold by such affiliates do not constitute restricted securities (as defined in Rule 144 of any Issuer for a period of two years after the Closing DateAct).
(k) Not to engage, not to allow any of their its subsidiaries to engage, and to use its reasonable best efforts to cause their its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their affiliates, as to whom neither of the Company and the Co-Issuer make no Issuers makes any covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their its subsidiaries to engage, and to use its reasonable best efforts to cause their its other affiliates and any person acting on their its behalf (other than, in any case, the Initial Purchasers Purchaser and any of their affiliates, as to whom neither of the Company and the Co-Issuer make no Issuers makes any covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, to provide to the holders of the Notes the information required by the Indenture and, for so long as any of the Notes remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company is Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial ownerholder. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their its agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their its reasonable best efforts to obtain approval of the Original Notes by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sq) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tr) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company Issuers of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other personsPersons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; interest, and none neither of the Company, the Co-Issuer nor Issuers or any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, .
(j), (k), (l), (rs) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their its reasonable best efforts (including through to effect the enforcement inclusion of their rights under the UPA) to cause such person to comply with such covenantsNotes in PORTAL.
Appears in 1 contract
Samples: Purchase Agreement (Wh Holdings Cayman Islands LTD)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree Each Issuer hereby agrees with 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 Units 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. Each Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any 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 Securities under any state securities or Blue Sky laws, each Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time; provided, however, that neither Issuer 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.
(b) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial Purchasers, without charge, with Purchaser to the Issuers as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably requestrequest for the time period specified in Section 5(c). HoldingsSubject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company and the Co-each Issuer consent consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementhereto, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes Resales and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplementmarket-making activities.
(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 Securities are outstanding, (i) not to make any amendment or supplement to the Offering Memorandum of which the 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 necessary or advisable in connection with such Exempt Resales or such market-making activities.
(d) If, prior during the period referred to the time that the Initial Purchasers have completed their distribution of the Original Notesin Section 5(c) above, any event shall occur thator condition shall exist as a result of which, in the judgment of the Company or in the judgment opinion of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended it becomes necessary to amend or supplemented, untrue or that requires the making of any additions to or changes in supplement the Offering Memorandum in order to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are madewhen such Offering Memorandum is delivered by the Initial Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement the Offering Memorandum to comply with any applicable law, the Company shall promptly notify the Initial Purchasers of such event and (subject forthwith to Section 4(b)) prepare an appropriate amendment or supplement to the such Offering Memorandum so that (i) the statements in the Offering Memorandumtherein, as so amended or supplemented, willwill not, in the light of the circumstances at the time when it is so delivered, be misleading, or so that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the such Offering Memorandum will comply with applicable law, and to furnish to the Initial Purchaser and such other persons as the Initial Purchaser may designate such number of copies thereof as the Initial Purchaser may reasonably request.
(de) To qualify Prior to the sale of all Units pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the registration or register qualification of the Original Notes Units for 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 continue such registration or qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoingResales and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, no however, that neither Issuer shall be required in connection therewith to qualify as a foreign corporation entity in any jurisdiction in which it is not now so qualified or to execute a 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 such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where which it is not then now so subject.
(ef) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of So long as any of the Original Notes for offering Securities are outstanding and the Indenture or sale in any jurisdictionWarrant Agreement so requires, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) to mail and make generally available as soon as practicable after the preparation, printing and distribution end of each fiscal year to the record holders of the Preliminary Offering Memorandum Securities a financial report of the Issuers and their 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 Offering Memorandum end of and all amendments for such fiscal year, together with comparable information as of the end of and supplements theretofor the preceding year, certified by the Issuer's independent public accountants and (ii) all expenses to mail and make generally available as soon as practicable after the end of each quarterly period (including travel expensesexcept 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 Issuers in connection 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 any meetings with prospective investors in comparable information for the Original Notes, (iii) the preparation, notarization (if necessary) and delivery corresponding periods of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchaserspreceding year.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so So long as any of the Securities are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by either Issuer to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of either Issuer is listed and such other publicly available information concerning either Issuer and/or their subsidiaries as the Initial Purchaser may reasonably request.
(h) So long as any of the Series A Notes or Warrants remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company either Issuer is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request to any holder of Series A Notes or Warrants in connection with any sale thereof and any prospective purchaser of such Series A Notes or Warrants from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act to Securities Act.
(i) any holder Whether or beneficial owner 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 Notes the obligations of each Issuer under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the Issuers and accountants of the Issuers in connection with any the sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter delivery of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge Units to the Initial PurchasersPurchaser and pursuant to Exempt Resales, (i) as soon as they have been received by Holdingsand all other fees and expenses in connection with the preparation, a copy of any regularly prepared internal financial statements printing, filing and distribution of the Company Preliminary Offering Memorandum, the Offering Memorandum and its subsidiaries for all amendments and supplements to any period subsequent of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the period covered Initial Purchaser and persons designated by the financial statements appearing it in the Offering Memorandumquantities specified herein, (ii) copies all costs and expenses related to the transfer and delivery of all the Units to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and taxes payable thereon, (iii) such all costs of printing or producing this Agreement, the other information as the Initial Purchasers shall reasonably request.
(r) Not to, Operative Documents and not to permit any of their affiliates other agreements or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material documents in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until purchase, sale or delivery of the Units, (iv) all expenses in connection with the registration or qualification of the Units 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 shall have notified the Company of the completion of the resale of the Notes, not to, Purchaser in connection with such registration or qualification and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (jmemoranda relating thereto), (k), (l), (rv) and (t) the cost of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.printing
Appears in 1 contract
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) IfSubject to Section 4(q), if, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies inclusion of the Preliminary Offering Memorandum and Securities in the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resalesbook-entry system of The Depository Trust Company (“DTC”), (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiviii) the fees and expenses of the Trustee and its counsel counsel, (ix) the out-of-pocket expenses of the Initial Purchasers (including, without limitation, the fees and expenses of the Initial Purchasers’ counsel) not to exceed $250,000 and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Preliminary Offering Memorandum under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any electronic roadshow and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects, or any amendment or supplement thereto prepared in accordance with Section 4(b).
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 90 days after the date hereof, without prior written consent of this Section 4the Representative, solely with respect offer, sell, contract to sell or otherwise dispose of any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPAor any Subsidiary (other than Xxxxx Energy Partners, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement L.P. and its subsidiaries) and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Samples: Purchase Agreement (Holly Corp)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities; (iii) one-half of all expenses (including the cost of any chartered airplane or other transportation) of the Issuers and the Initial Purchasers in connection with the “road show” for the offering of the Securities, (iiiiv) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (ivv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (vvi) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation inclusion of certificates for the NotesSecurities in the book-entry system of The Depository Trust Company (“DTC”), (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply cooperate with all of their obligations set forth in and assist the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts Initial Purchasers to obtain approval of the Original Notes by DTC Securities to be eligible for "book-entry" transferclearance and settlement through DTC.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not toWithout the prior consent of the Representatives, not to make, and not to permit any of their its affiliates or anyone acting on their its or their its affiliates behalf to (other than the Initial Purchasers and their affiliates)make, distribute prior any offer relating to the Closing Date any Securities that, if the offering material in connection of the Securities contemplated by this Agreement were conducted as a public offering pursuant to a registration statement filed under the Act with the Commission, would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act (any such offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandumis hereinafter referred to as a “Company Supplemental Disclosure Document”).
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 30 days after the date hereof, without the prior written consent of this Section 4Xxxxxxx Xxxxx (which consent may be withheld at the sole discretion of Xxxxxxx Xxxxx), solely with to not, directly or indirectly, offer, sell, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Act in respect to of, any person who is selling an ownership interest in debt securities of the Company or any Subsidiary or any securities exchangeable for or convertible into debt securities of the Company or any Subsidiary (other than as contemplated by this Agreement and to Holdings pursuant to register the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenantsExchange Securities).
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant convenant and agree with the Initial Purchasers purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to completion of the Closing Date initial distribution of the Original Notes unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have objected to to, such amendment or supplementsupplement within a reasonable time.
(c) If, prior to completion of the time that the Initial Purchasers have completed their initial distribution of the Original Notes, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with all applicable lawlaws.
(d) To qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding Not-withstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or any other regulatory authority. The Issuers 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 Original Origi- nal Notes under any securities laws, and if at any time any securities commission or any other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of default by the Initial Purchasers, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: with (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expensesthe expenses for the jet used for transportation of management of the Company and the Initial Purchasers in connection with such meetings) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto, such fees and expenses limited to $5,000 other than in connection with preparation of the Canadian offering document), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") market of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement agreement are not consummated or this Agreement agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers Issuer shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States or in any Province of Canada (the "Canadian Provinces") prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) Not to register any transfer of the Original Notes not made in accordance with the provisions of Regulation S and not, except in accordance with the provisions of Regulation S, if applicable, to issue any such Original Notes in the form of definitive securities in connection with the Original Notes offered and sold in an offshore transaction (as defined in Regulation S).
(n) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(no) To comply with all of their agreements set forth in the Registration Rights Agreement.
(op) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(pq) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qr) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared final internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails Issuers mail or otherwise make available to security holders or the Trustee and (iii) such other information as the Initial Purchasers shall reasonably request.
(rs) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(st) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tu) To file, within the time periods prescribed by the applicable Canadian Securities Laws, such documents and reports as may be required to be filed by the Issuers with Canadian Securities Regulators under the applicable Canadian Securities Laws relating to the private placement of Original Notes by the Initial Purchasers; provided that the Initial Purchasers have delivered a request to effect such filings together with such information as to permit the Issuers to do so, and the Issuers will pay any filing fee prescribed with respect thereto.
(v) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest interests any Notes; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (Ipsco Inc)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities; (iii) one-half of all expenses (including the cost of any chartered airplane or other transportation) of the Issuers and the Initial Purchasers in connection with the “road show” for the offering of the Securities, (iiiiv) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (ivv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (vvi) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation inclusion of certificates for the NotesSecurities in the book-entry system of The Depository Trust Company (“DTC”), (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply cooperate with all of their obligations set forth in and assist the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts Initial Purchasers to obtain approval of the Original Notes by DTC Securities to be eligible for "book-entry" transferclearance and settlement through DTC.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not toWithout the prior consent of the Representatives, not to make, and not to permit any of their its affiliates or anyone acting on their its or their its affiliates behalf to (other than the Initial Purchasers and their affiliates)make, distribute prior any offer relating to the Closing Date any Securities that, if the offering material in connection of the Securities contemplated by this Agreement were conducted as a public offering pursuant to a registration statement filed under the Act with the Commission, would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act (any such offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandumis hereinafter referred to as a “Company Supplemental Disclosure Document”).
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 30 days after the date hereof, without the prior written consent of this Section 4Xxxxxxx Xxxxx (which consent may be withheld at the sole discretion of Xxxxxxx Xxxxx), solely with to not, directly or indirectly, offer, sell, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Act in respect to of, any person who is selling an ownership interest in debt securities of the Company or any Subsidiary or any securities exchangeable for or convertible into debt securities of the Company or any Subsidiary (other than as contemplated by this Agreement and to Holdings pursuant to register the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenantsExchange Securities).
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, and any documents incorporated by reference therein, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto thereto, and any documents incorporated by reference therein, required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have objected to to, such amendment or supplement within a reasonable time, but in any event not longer than two business days after being furnished with a copy of such amendment or supplement. The Issuers shall promptly prepare, upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, Memorandum as then amended or supplemented, supplemented 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, Memorandum as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, Memorandum as amended or supplemented, supplemented will, in the light of the circumstances circum- stances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes Securities under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no neither Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectsubject (except service of process with respect to the offering and sale of the Securities).
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any state or provincial securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state or provincial securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any state securities or Blue Sky laws, and if at any time any state or provincial securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any state or provincial securities or Blue Sky laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers, but not of counsel to the Initial Purchasers (except pursuant to clause (iv) reasonably incurred herein) or expenses of the Initial Purchasers) and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) preparation and delivery of the Note Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors Issuers of the Original Notes and the Guarantee, respectively, Securities to the Initial Purchasers, (viv) the qualification or registration of the Notes Debentures and the Guarantees for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda memorandum and the fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto)) and all similar expenses and fees in connection with the offer and sale of the Securities in Canada on a private placement basis pursuant to applicable provincial securities laws, (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested by the Initial Purchasers for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesDebentures and the Guarantees, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixvii) the approval of the Notes Debentures and the Guarantees by The Depository Trust Company ("DTC") for "book-entry" transfer, (xviii) the rating of the Notes Debentures by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel in accordance with the Indenture and (xiix) the performance by the Issuers of their other obligations under the Note Operative Documents. In addition, if the transactions contemplated by this Agreement are including, but not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchaserslimited to, the Issuers shall pay the fees, disbursements and expenses of the Issuer's counsel and disbursements of counsel to the Initial Purchasersaccountants.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any subsidiary of their subsidiaries the Guarantor 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 Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any subsidiary of their subsidiaries the Guarantor to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, than in any case, case the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any subsidiary of their subsidiaries the Guarantor to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, than in any case, case the Initial Purchasers and any of their affiliatesPurchasers, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and agree to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company is and the Guarantor are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder Holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder Holder or beneficial owner designated by the holder such Holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with Agreement and all of their obligations agreements set forth in the representations letter of the Issuers Company to DTC relating to the approval of the Original Notes Debentures by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes Debentures by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qo) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, Purchasers (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company either Issuer mails or otherwise make makes available to security holders and (iiiii) such other information as the Initial Purchasers shall reasonably request.
(rp) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree Each of the Issuers agrees with the Initial Purchasers as follows:
(a) To furnish The Issuers will advise the Initial Purchasers and those persons identified promptly and, if requested by them, will confirm such advice in writing, within the Initial Purchasersperiod of time referred to in the first sentence of subsection (e) below, without charge, with as many copies of any change in the Trust or any of the Preliminary Offering Memorandum and the Offering MemorandumSubsidiaries condition (financial or other), and any amendments business, prospects, properties, net worth or supplements theretoresults of operations, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer consent to the use or of the Preliminary Offering Memorandum and the Offering Memorandumhappening of any event, and which change or happening makes any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained material statement made in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, ) untrue or that 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, Memorandum (as then amended or supplemented) to comply with any law.
(b) The Issuers will furnish to the Initial Purchasers, without charge, as of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(c) The Issuers 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 it shall reasonably object by written notice to the Issuers within three (3) business days after being so advised, 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 misleading.
(d) Prior to the execution and delivery of this Agreement, the Issuers 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. Each of the Issuers 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 Issuers. Each of the Issuers 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 are offered by the Initial Purchasers in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event shall occur that in the judgment of any of the Issuers or in the opinion of the Initial Purchasers' counsel should be set forth in the Offering Memorandum (as then amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading, or if it is necessary to supplement or amend or supplement the Offering Memorandum in order to comply with applicable any law, the Company shall promptly notify Issuers will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers a reasonable number of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable lawcopies thereof.
(df) To qualify or register The Issuers will cooperate with the Original Initial Purchasers and with its counsel in connection with the 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 continue service of process or other documents necessary or appropriate in order to effect such qualification qualification; provided that in effect so long as required for no event shall the Exempt Resales. Notwithstanding the foregoing, no Issuer shall Issuers be required obligated to qualify as a foreign corporation to do business or subject themselves to income taxation in any jurisdiction in which where it is not now so qualified or to execute a general consent take any action which would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or subject itself to taxation in excess sale of a nominal dollar amount the Notes, in any such jurisdiction where it is not then now so subject.
(eg) To advise Upon the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either request of the Initial Purchasers, for a period of five years after the Closing Date, the Issuers shall pay the fees, expenses and disbursements of counsel will furnish to the Initial PurchasersPurchasers (i) as soon as available, a copy of each report of the Issuers mailed to holders of the Notes or filed with the Securities and Exchange Commission or similar foreign entity and (ii) from time to time such other information concerning the Trust and the Subsidiaries as the Initial Purchasers may reasonably request.
(gh) To use If this Agreement shall terminate or shall be terminated 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 any of the Issuers to comply with the terms or fulfill any of the conditions of this Agreement, each of the Issuers, jointly and severally, agrees to reimburse the Initial Purchasers for all reasonable 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 Issuers for loss of profits or otherwise.
(i) The Issuers will apply the net proceeds from the sale of the Original Notes, Notes to be sold by it hereunder substantially in accordance with the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described description set forth in the Offering Memorandum under the caption "Use of proceedsProceeds."
(hj) To use their reasonable best efforts to do and perform all things required to be done and performed under Except as stated in this Agreement by them prior and in the Preliminary Offering Memorandum and Offering Memorandum, none of the Trust or the Subsidiaries has taken, nor will they take, directly or indirectly, any action designed to or after the Closing Date and that might reasonably be expected to satisfy all conditions precedent on their part to the delivery cause or result in stabilization or manipulation of the Original Notes.
(i) Not to, and not price of the Notes to permit any of their subsidiaries to, sell, offer for facilitate the sale or solicit offers to buy any security (resale of the Notes. Except as defined in permitted by the Act) that would be integrated , none of the Trust or their Subsidiaries will distribute any offering material in connection with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing DateExempt Resales.
(k) Not to engage, not to allow any Each of their subsidiaries to engage, and the Issuers will use its reasonable best efforts to cause their other affiliates and any person acting the Notes to be eligible for trading on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original NotesPORTAL Market.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes remain are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3144(a) under the Act Act, and during any period in which any of the Company Issuers is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly Each of the Issuers severally covenants and severally, covenant and agree agrees with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, Each of the Company and the Co-Issuer consent Issuers 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 the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall Purchaser has previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have Purchaser has notified the Issuers that it has completed their its distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, that makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws known to the Issuers, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at as of the time that of the Offering Memorandum is delivered to prospective Eligible Purchasers, amendment or supplement will not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers Purchaser may reasonably request and to continue such qualification in effect so long as reasonably required for the Exempt Resales. Notwithstanding the foregoing, no Issuer neither of the Issuers shall be required to qualify as a foreign corporation or other business entity in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Each of the Issuers shall use their its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, each of the Issuers shall use their its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, disbursements (including reasonable fees, expenses and disbursements of each of the counsel to the IssuersIssuers and the Initial Purchaser) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchaser in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and by the Guarantee, respectively, Issuers to the Initial PurchasersPurchaser, (v) (subject to Section 4(d)) hereof, the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees fees, and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating theretothereto up to $20,000), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Original Notes and the Exchange Notes in The Portal PORTAL Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") the DTC for "book-entry" transfer, (x) the rating of the Notes by investment rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes substantially in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them it prior to or after the Closing Date and to use its reasonable best efforts to satisfy all conditions precedent on their its part to the delivery of the Original Notes.
(i) Not to, and not to permit cause any of their its subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use its reasonable best efforts to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them; provided, and that, affiliates of the Issuers may resell any Original Notes that constitute "restricted securities" under Rule 144, other than have been acquired by such affiliate so long as such resale (i) is made pursuant to an Issuer exemption from the registration requirements of the Act or an affiliate a transaction registered under the Act and (ii) such Original Notes, when resold by such affiliates do not constitute restricted securities (as defined in Rule 144 of any Issuer for a period of two years after the Closing DateAct).
(k) Not to engage, not to allow any of their its subsidiaries to engage, and to use its reasonable best efforts to cause their its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their affiliates, as to whom neither of the Company and the Co-Issuer make no Issuers makes any covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their its subsidiaries to engage, and to use its reasonable best efforts to cause their its other affiliates and any person acting on their its behalf (other than, in any case, the Initial Purchasers Purchaser and any of their affiliates, as to whom neither of the Company and the Co-Issuer make no Issuers makes any covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, to provide to the holders of the Notes the information required by the Indenture and, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company is Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial ownerholder. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their its agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their its reasonable best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sq) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tr) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company Issuers of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other personsPersons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; interest, and none neither of the Company, the Co-Issuer nor Issuers or any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, .
(j), (k), (l), (rs) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their its reasonable best efforts (including through to effect the enforcement inclusion of their rights under the UPA) to cause such person to comply with such covenantsNotes in PORTAL.
Appears in 1 contract
Samples: Purchase Agreement (Wh Capital Corp)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have objected to to, such amendment or supplement within a reasonable time, but in any event not longer than two business days after being furnished with a copy of such amendment or supplement.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchasers, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal PORTAL(SM) Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement agreement are not consummated or this Agreement agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers Issuer shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, them other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing DateIssuer.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement restriction requirements of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 Act and during any period in which either EaglePicher Holdings, Inc. or the Company is not subject to or has not voluntarily filed periodic and other required reports and filings under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply in all material respects with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in PortalPORTAL.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared final internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails Issuers mail or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date F or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (Epmr Corp)
Agreements of the Issuers. The Issuers, jointly Each of the Issuers covenants and severally, covenant and agree agrees with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably requestrequest for purposes contemplated by the Act. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers Purchaser in connection with Exempt ResalesResales that are in compliance with Sections 5(b) and 5(c) of this Agreement.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have objected to (any such objection not to be unreasonable), such amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished with a copy of such amendment or supplement. The Issuers shall promptly prepare, upon the Purchaser's reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, Memorandum as amended or supplemented, supplemented will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Purchaser and counsel to the Purchaser in connection with the qualification or register registration of the Original Series A First Mortgage Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer the Issuers shall not be required to qualify as a foreign corporation corporations in any jurisdiction in which it is they are not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself themselves to taxation in excess of a nominal dollar amount in any such jurisdiction where it is they are not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuerscounsel) reasonably incurred and stamp, documentary or similar taxes imposed by the U.S., the Netherlands Antilles or Canada incident to and in connection with: (i) the preparation, printing printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) preparation and delivery of the Note Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Company Issuers and the Co-Issuer and the Subsidiary Guarantors of the Original Notes and the GuaranteeSubsidiary Guarantees, respectively, to the Initial PurchasersPurchaser, (viv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda memorandum and the fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesNotes (including, without limitation, printing and engraving thereof), (viiivii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), including, but not limited to, all listing fees and expenses, (ixviii) the approval of the Notes by The Depository Trust Company ("DTC") for "book-book- entry" transfer, (xix) the rating of the Notes by rating agencies, (xix) the fees and expenses of the Trustee and Collateral Agent and its counsel and (xiixi) the performance by the Issuers and the Subsidiary Guarantors of their other obligations under the Note Operative Documents. In addition, if the transactions contemplated by this Agreement are including, but not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchaserslimited to, the Issuers shall pay the fees, disbursements and expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing Issuers' counsel and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsaccountants."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchaser the Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from Pricing Supplement or as otherwise agreed by the corresponding information contained in Initial Purchaser. Not to amend or supplement the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to or the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have Purchaser has completed their its distribution of the Original NotesOffered Securities, any event shall occur that, in the reasonable judgment of the Company Issuers or in the reasonable judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event event, or the Initial Purchaser shall promptly notify the Issuers, as the case may be, and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the qualification or register registration of the Original Notes Offered Securities under the securities laws of such jurisdictions as the Initial Purchasers Purchaser may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchaser, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and all stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, ; (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, Offered Securities; (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, ; (iv) the issuance, transfer and delivery of the Offered Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, Purchaser; (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final “Blue Sky Sky” or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), ; (vi) the furnishing preparation, printing and distribution of such copies one or more versions of the Preliminary Offering Memorandum Pricing Disclosure Package and the Offering MemorandumMemorandum for distribution in Canada, often in the form of a Canadian “wrapper” (including the preparation of any related Canadian blue sky memorandum and all amendments the related fees and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, expenses of Canadian counsel to the Initial Purchaser); (vii) the preparation inclusion of certificates for the Notes, Offered Securities in the book-entry system of the DTC; (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, ; (xiix) the fees and expenses of the Trustee and its counsel counsel; (x) the cost of any aircraft chartered in connection with the roadshow and (xiixi) the performance by the Issuers of their other obligations under the Note Documents; provided, however, except as set forth above in subparagraph (v) the Initial Purchaser shall be responsible for all legal fees and expenses of its legal counsel; and provided further, however, that except as otherwise expressly set forth in this Agreement, the Initial Purchaser shall pay its own costs and expenses, including costs and expenses relating to the roadshow. In addition, if the transactions contemplated by this Agreement are not consummated or for any reason other than the termination of this Agreement is terminated other than by reason of a pursuant to Section 11 hereof or the default by either of the Initial PurchasersPurchaser in its obligations hereunder, the Issuers shall pay shall, in addition to paying the feesamounts described above, expenses reimburse the Initial Purchaser for one-half of its reasonably incurred out-of-pocket expenses, including the reasonably incurred fees and disbursements of counsel to the Initial Purchasersits counsel.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the a manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesOffered Securities.
(i) Not toto permit any Issuer, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Offered Securities to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer or any of its subsidiaries to, and to use their reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired acquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer in accordance with the letter agreement provided for a period of two years after the Closing Datein Section 8(o) hereof.
(k) Not to permit any Issuer to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes Offered Securities by DTC for "“book-entry" ” transfer and to use their reasonable best efforts to obtain approval of the Original Notes Offered Securities by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received by Holdingsprepared, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that any of the Company mails Issuers mail or otherwise make available to their security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers Purchaser and their its affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, an Issuer Written Communication and the Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Initial Purchaser and counsel for the Initial Purchaser a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Initial Purchaser reasonably objects.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end an investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company of the completion of the resale of the NotesOffered Securities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest in any Notesof the Securities (other than the Regulation D Notes pursuant to the Regulation D Private Placement); and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof, through and including the date that is 90 days after the date hereof, without the prior written consent of this Section 4the Initial Purchaser, solely with respect offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any Subsidiary and having a term of more than one year. The Company and the Initial Purchaser agree that prior to any person who is selling an ownership interest in registration of the Company to Holdings Securities pursuant to the UPARegistration Rights Agreement, or at such earlier time as may be so required, the Issuers Indenture shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights qualified under the UPA) Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and that it will cause to cause such person to comply with such covenantsbe entered into any necessary supplemental indentures in connection therewith.
Appears in 1 contract
Samples: Purchase Agreement (Phi Inc)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Circular, the Pricing Supplement and the Final Offering MemorandumCircular, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Circular, the Pricing Supplement and the Final Offering MemorandumCircular, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Circular, which shall consist of the Preliminary Offering Circular as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum Circular or the Pricing Supplement. Not to amend or supplement the Final Offering Circular prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering MemorandumCircular, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum Circular in order to make the statements in the Final Offering MemorandumCircular, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum Circular to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum Circular so that (i) the statements in the Final Offering MemorandumCircular, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum Circular will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Circular, the Pricing Supplement and the Final Offering Memorandum Circular and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies application for quotation of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use Securities in connection with Exempt ResalesThe Portal Alliance (“Portal”), (vii) the preparation inclusion of certificates for the NotesSecurities in the book-entry system of The Depository Trust Company (“DTC”), (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if including all fees and expenses in connection with the creation and perfection of the Liens under each of the Security Documents (including, without limitation, filing and recording fees, search fees and taxes); provided, notwithstanding the foregoing, the Initial Purchasers shall pay for all expenses incurred in connection with chartered aircraft used in connection with the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial PurchasersAgreement.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply cooperate with all of their obligations set forth in and assist the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts Initial Purchasers to obtain approval of the Original Notes by DTC Securities to be eligible for "book-entry" transferclearance and settlement through DTC.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not toWithout the prior consent of the Representatives, not to make, and not to permit any of their its affiliates or anyone acting on their its or their its affiliates behalf to (other than the Initial Purchasers and their affiliates)make, distribute prior any offer relating to the Closing Date any Securities that, if the offering material in connection of the Securities contemplated by this Agreement were conducted as a public offering pursuant to a registration statement filed under the Act with the Commission, would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act (any such offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandumis hereinafter referred to as a “Company Supplemental Disclosure Document”).
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 30 days after the date hereof, without the prior written consent of this Section 4the Representatives, solely with respect offer, sell, contract to sell or otherwise dispose of any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement or any Subsidiary and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Supplement, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Supplement, the Pricing Supplement and the Final Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, Memorandum by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from Supplement and the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not Pricing Supplement; not to amend or supplement the Preliminary Offering Memorandum (other than as amended by the Supplement), the Supplement or the Pricing Supplement; not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Pricing Disclosure Package or the Final Offering Memorandum, as either is then amended or supplemented, untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package or Final Offering Memorandum in order to make the statements in the Pricing Disclosure Package or the Final Offering Memorandum, as either is then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package or the Final Offering Memorandum to comply with all applicable lawlaws, the Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Pricing Disclosure Package or the Final Offering Memorandum so that (i) the statements in the Pricing Disclosure Package or Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Pricing Disclosure Package and the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Supplement, the Pricing Supplement, any Issuer Written Communication and the Final Offering Memorandum and all any amendments and or supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies application for quotation of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use Securities in connection with Exempt ResalesThe PORTAL Market (“Portal”) of The Nasdaq Stock Market, (vii) the preparation inclusion of certificates for the NotesSecurities in the book-entry system of DTC, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers of their other obligations under the Note Documents. In additionFor the avoidance of doubt, if the transactions contemplated by Issuers’ obligations under this Agreement are Section 4(f) shall not consummated affect any expense sharing or this Agreement is terminated other than by reason of a default by either contribution arrangements one or more of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasersmay have with Sirius.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceeds,” unless XM Escrow is required to effectuate a Special Redemption pursuant to the Indenture."
(h) To use their reasonable its best efforts to do and perform all things required to be done and performed under this Agreement by them it prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any Subsidiary (as defined herein) nor any affiliates (as defined in Rule 501(b) of their subsidiaries Regulation D under the Act) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the Act and during any period in which the Company XM Holdings is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer XM Holdings will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement[Intentionally Omitted].
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company XM Holdings mails or otherwise make makes available to its security holders and (iiiii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Supplement, the Pricing Supplement, any “road show” (as defined in Rule 433 under the Securities Act) and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Issuers will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified XM Holdings and the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their reasonable best efforts to effect the inclusion of the Securities in Portal.
(u) During the period from the date hereof through and including through the enforcement date that is 90 days after the date hereof, without the prior written consent of their rights the Representative, offer, sell, contract to sell or otherwise dispose of in any transaction required to be registered under the UPAAct or pursuant to Rule 144A, any debt securities issued or guaranteed by XM Holdings, XM Escrow, the Company or any Subsidiary and having a tenor of more than one year, provided, however, that the foregoing restriction shall not apply to debt securities issued in connection with the Refinancing Transactions or a letter of credit or other collateral used to replace the MLB escrow arrangement, in an amount not to exceed $120.0 million.
(v) to cause such person To deposit the Offering Proceeds into the Escrow Account and to comply with all of its agreements set forth in the Escrow Agreement and to use its best efforts to do and perform all things necessary to perfect a first priority security interest in Escrowed Funds and the other Collateral (as such covenantsterms are defined in the Escrow Agreement).
(w) Upon consummation of the Escrow Merger, that the Company shall assume all of XM Escrow’s obligations under the Note Documents pursuant to the Assumption Indenture and the Escrow Merger Agreement.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not (i) As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchaser the Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from Pricing Supplement or as otherwise agreed by the corresponding information contained in Initial Purchaser; (ii) not to amend or supplement the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to or the Notes Pricing Supplement; and (iiiii) such other changes as to which the Representative shall have consented. Not not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) IfSubject to Section 4(q), if, prior to the Closing Date, any event shall occur or condition shall exist that, in the reasonable judgment of the Issuers or in the reasonable judgment of the Initial Purchaser, makes any statement of a material fact in the Pricing Disclosure Package, as then amended or supplemented, untrue or that requires amending or supplementing the Pricing Disclosure Package in order to make the statements in the Pricing Disclosure Package, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable laws, the Issuers shall promptly notify the Initial Purchaser (or the Initial Purchaser shall promptly notify the Issuer of such fact, as the case may be) of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Pricing Disclosure Package so that (i) the statements in the Pricing Disclosure Package, as amended or supplemented, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) the Pricing Disclosure Package will comply, in all material respects, with all applicable law. Subject to Section 4(q), if, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have Purchaser has completed their its distribution of the Original NotesSecurities, any event shall occur or condition shall exist that, in the reasonable judgment of the Company Issuers or in the reasonable judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to amending or changes in supplementing the Offering Memorandum in order to make the statements in the Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event event, or the Initial Purchaser shall promptly notify the Issuers, as the case may be, and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the qualification or register registration (or obtaining exemptions from qualification or registration) of the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers Purchaser may request and to continue such qualification or registration in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchaser, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and all stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, ; (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, Securities; (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, ; (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, Purchaser; (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final “Blue Sky Sky” or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), ; (vi) the furnishing preparation, printing and distribution of such copies one or more versions of the Preliminary Offering Memorandum Pricing Disclosure Package and the Offering MemorandumMemorandum for distribution in Canada, often in the form of a Canadian “wrapper” (including the preparation of any related Canadian blue sky memorandum and all amendments the related fees and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, expenses of any Canadian counsel to the Initial Purchaser); (vii) the preparation inclusion of certificates for the Notes, Securities in the book-entry system of the DTC; (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Securities and the Exchange Notes by rating agencies, ; (xiix) the fees and expenses of the Trustee and its counsel counsel; (x) the cost of any aircraft chartered in connection with the roadshow and (xiixi) the performance by the Issuers of their other obligations under the Note Documents; provided, however, except as set forth above in subparagraph (v) the Initial Purchaser shall be responsible for all legal fees and expenses of its legal counsel; and provided further, however, that except as otherwise expressly set forth in this Agreement, the Initial Purchaser shall pay its own costs and expenses, including costs and expenses relating to the roadshow. In addition, if the transactions contemplated by this Agreement are not consummated or for any reason other than the termination of this Agreement is terminated other than by reason of a pursuant to Section 11 hereof or the default by either of the Initial PurchasersPurchaser in its obligations hereunder, the Issuers shall pay shall, in addition to paying the feesamounts described above, expenses reimburse the Initial Purchaser for one-half of its reasonably incurred out-of-pocket expenses, including the reasonably incurred fees and disbursements of counsel to the Initial Purchasersits counsel.
(g) To use the proceeds from the sale of the Original Notes, Securities in a manner substantially consistent in all material respects with the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described description in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not toto permit any Issuer, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer or any of its subsidiaries to, and to use their reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired acquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer in accordance with the letter agreement provided for a period of two years after the Closing Datein Section 8(o) hereof.
(k) Not to permit any Issuer to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents. In addition, to the extent the Company is subject to Section 13 or 15(d) of the Exchange Act, prior to the Closing Date, the Company shall timely file all reports under the Exchange Act.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes Securities by DTC for "“book-entry" ” transfer and to use their reasonable best efforts to obtain approval of the Original Notes Securities by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received by Holdingsprepared, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that any of the Company mails Issuers mail or otherwise make available to their security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers Purchaser and their its affiliates), to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, an Issuer Written Communication and the Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Initial Purchaser and counsel for the Initial Purchaser a copy of such Issuer Written Communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Initial Purchaser reasonably objects.
(sr) During the period of two years one year after the Closing Date orDate, if earlier, until such time as neither the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to Company nor any Guarantor will be or become a closedan open-end investment Company, unit investment trust or face-amount certificate company that is or is required to be registered, but not registered, registered under Section 8 of the Investment Company Act of 1940, as amended.amended (together with the rules and regulations of the Commission promulgated thereunder, the “Investment Company Act”)
(ts) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company of the completion of the resale of the NotesSecurities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest in any Notesof the Securities; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof, through and including the date that is 90 days after the date hereof, without the prior written consent of this Section 4the Initial Purchaser, solely with respect offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any Subsidiary and having a term of more than one year. The Company and the Initial Purchaser agree that prior to any person who is selling an ownership interest in registration of the Company to Holdings Securities pursuant to the UPARegistration Rights Agreement, or at such earlier time as may be so required, the Issuers Indenture shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights qualified under the UPA) Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and that it will cause to cause such person to comply with such covenantsbe entered into any necessary supplemental indentures in connection therewith.
Appears in 1 contract
Samples: Purchase Agreement (Phi Inc)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as followsPurchasers:
(a) To to furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not not to amend or supplement the Offering Memorandum prior to completion of the Closing Date initial distribution of the Original Notes unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have objected to to, such amendment or supplementsupplement within a reasonable time.
(c) Ifif, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event shall occur that, in the reasonable judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue or that requires the making of which omits to state any additions to or changes in the Offering Memorandum material fact necessary in order to make the statements in the Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements of material fact contained in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with all applicable lawlaws.
(d) To qualify to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjecttaxation.
(e) To to advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or any other regulatory authority. The Issuers shall use their commercially reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or any other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchasers, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, it being understood that the Company and the Initial Purchasers shall share equally the expenses associated with all airplane travel for such “roadshow” and any other meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal PORTAL Market ("“Portal"”) of the National Association of Securities Dealers, Inc. ("“NASD"”), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("“DTC"”) for "“book-entry" ” transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if if, but only if, the transactions contemplated by this Agreement agreement are not consummated or this Agreement agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers Issuer shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To to use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not not to permit any Issuer to, and to use their reasonable efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not not to engage, not to allow any of their subsidiaries to engage, and to use their commercially reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not not to engage, not to allow any of their subsidiaries to engage, and to use their commercially reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph (other than capitalized terms defined in this Agreement) have the meanings given to them by Regulation S.
(m) From not to register any transfer of the Original Notes sold in reliance on Regulation S which transfers were not made in accordance with the provisions of Regulation S and not, except in accordance with the provisions of Regulation S, if applicable, to issue any such Original Notes in the form of definitive securities in connection with the Original Notes offered and sold in an offshore transaction (as defined in Regulation S).
(n) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(no) To to comply with all of their agreements set forth in the terms and provisions of the Registration Rights Agreement.
(op) To to comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer and to use their commercially reasonable best efforts to obtain approval of the Original Notes by DTC for "“book-entry" ” transfer.
(pq) To to use their commercially reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qr) Prior to for two years after the Closing Date, to furnish without charge to the Initial PurchasersPurchasers copies of all reports filed or required to be filed under the Exchange Act furnished by the Company to the Trustee or to the holders of the Notes and which are not otherwise publicly available and, (i) as soon as they have been received by Holdingspracticable, a copy copies of any regularly prepared internal reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandumwhich are not otherwise publicly available; provided, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably requestagree to maintain the confidentiality of the information in such reports or financial statements.
(rs) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(st) During during the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tu) In in connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the reasonable judgment of the Company Issuers or in the reasonable judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event event, or the Initial Purchasers shall promptly notify the Issuers, as the case may be, and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchasers, to pay all costs, expenses, fees, disbursements (including fees, expenses fees and disbursements of counsel to the Issuers) reasonably incurred and all stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesNotes except for all airline, hotel and ground transportation costs of the Initial Purchasers, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final "Blue Sky Sky" or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition; provided, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of however, except as set forth above in subparagraph (v) the Initial Purchasers, the Issuers Purchasers shall pay the fees, be responsible for all legal fees and expenses and disbursements of counsel to the Initial Purchaserstheir legal counsel.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the a manner described in the Offering Memorandum under consistent with the caption "Use of proceedsProceeds" as described in the Offering Memorandum."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not toto permit any Issuer, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to permit any Issuer to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their reasonable best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdingsprepared, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that any of the Company mails Issuers mail or otherwise make available to their security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end an investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest in any of the Notes; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, .
(j), (k), (l), (ru) and (t) of this Section 4, solely with respect The Company agrees that prior to any person who is selling an ownership interest in registration of the Company to Holdings Notes pursuant to the UPARegistration Rights Agreement, or at such earlier time as may be so required, the Issuers Indenture shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights qualified under the UPA) Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and that it will cause to cause such person to comply with such covenantsbe entered into any necessary supplemental indentures in connection therewith.
Appears in 1 contract
Agreements of the Issuers. The Issuers, Each of the Issuers jointly and severally, covenant and agree severally agrees with the Initial several Purchasers as followsthat:
(a) To furnish The Issuers will advise you promptly of any proposal to amend or supplement the Initial Purchasers and those persons identified by Registration Statement, any Pre-Pricing Prospectus, the Initial Purchasers, without charge, Prospectus or any Permitted Free Writing Prospectus with as many copies of the Preliminary Offering Memorandum and the Offering Memorandumrespect to any Purchased Preferred Securities, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer consent will furnish you a copy thereof prior to the use of filing thereof with the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt ResalesCommission.
(b) Not The Issuers will furnish to make any changes you copies of the registration statement relating to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than Preferred Securities as originally filed and all amendments thereto (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the proposed use Commission), each related Pre-Pricing Prospectus, Permitted Free Writing Prospectus, Prospectus, and shall not have objected all amendments and supplements to such amendment or supplementdocuments (except amendments to exhibits and supplements relating to Preferred Securities that are not Purchased Preferred Securities), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the Act.
(c) If, If at any time prior to the time that the Initial Purchasers have completed their distribution filing of the Original NotesProspectus, with respect to each Pre-Pricing Prospectus or, thereafter, with respect to the Prospectus, when a prospectus relating to the Purchased Preferred Securities is required to be conveyed under the Act or the Rules and Regulations, any event shall occur thatoccurs as a result of which such Pre-Pricing Prospectus or the Prospectus, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandumas applicable, as then amended or supplementedsupplemented would include any untrue statement of a material fact, untrue or that requires the making of any additions omit to or changes in the Offering Memorandum in order state a material fact necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are made, not misleading, or if it is necessary at any time to amend or supplement such Pre-Pricing Prospectus or the Offering Memorandum Prospectus, as applicable to comply with applicable lawthe Act or the Rules and Regulations, the Company shall Issuers will promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) promptly prepare and file with the Commission an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended Registration Statement or supplemented, will, in the light any appropriate filing pursuant to Section 13 or 14 of the circumstances Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and convey in connection therewith, such Pre-Pricing Prospectus or Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations; provided that the Issuers shall be so obligated only so long as the Issuers are notified of unsold allotments (failure by the Purchasers to so notify the Issuers cancels the Issuers’ obligation under this Section 4(c)); and provided further that any such Pre-Pricing Prospectus or Prospectus or amendment or supplement required later than nine months from the date hereof shall be furnished at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law’ sole expense.
(d) To The Issuers will cooperate with the Purchasers in taking such action as may be necessary to qualify or register the Original Notes Purchased Preferred Securities for offering and sale under the securities laws of such jurisdictions any state or jurisdiction of the United States as the Initial Purchasers may reasonably request and will use its best efforts to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding distribution of the foregoingPurchased Preferred Securities; provided, no Issuer however, that neither of the Issuers shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified corporation, or to execute file a general consent to service of process process, in any such state or jurisdiction or subject itself to taxation in excess of a nominal dollar amount in comply with any such jurisdiction where it is not then so subjectother requirement deemed by the Issuers to be unduly burdensome.
(e) To advise The Company will make generally available to its security holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Initial Purchasers promptly andAct) covering a period of twelve months after the effective date of the Registration Statement.
(f) For a period of one year, if requested the Company will furnish to you copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any information filed by the Initial Issuers on the Commission’s EXXXX system will be deemed furnished to you in satisfaction of this clause (f).
(g) The Trust will apply the net proceeds from the offering of the Purchased Preferred Securities as set forth under the caption “Use of proceeds” in the Prospectus Supplement.
(h) If a public offering of the Purchased Preferred Securities is to be made, neither of the Issuers will offer or sell any of its other securities which are substantially similar to the Purchased Preferred Securities or the Corresponding Debt Securities prior to [ ] days after the Closing Date without the consent of the Purchasers.
(i) Each of the Issuers will advise you, to confirm such advice in writingpromptly after it receives notice thereof, of the issuance by any securities commission the Commission of any stop order or of any order preventing or suspending the qualification use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or exemption from any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, of the suspension of the qualification of any of the Original Notes Purchased Preferred Securities for offering or sale in any jurisdiction, jurisdiction or of the initiation or threatening of any proceeding for any such purpose by any securities commission or other regulatory authority. The Issuers shall use their reasonable best efforts to prevent purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the qualification or exemption use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Original Notes under Registration Statement, or suspending any securities lawssuch qualification, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall promptly to use their its reasonable best efforts to obtain the prompt withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasersorder.
(j) Not to permit any Issuer toEach of the Issuers represent that neither has made, and agrees that, unless either obtains the prior written consent of [ ] on behalf of the Purchasers, neither will make any offer relating to cause their other affiliates the Purchased Preferred Securities that would constitute an “issuer free writing prospectus” (as defined in Rule 144 under 433 of the Act) not to resell any of the Original Notes or that have been reacquired by any of them, and that would otherwise constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities “free writing prospectus” (as defined in Rule 144 under 405 of the Act), not to be or become a closed-end investment company ) required to be registered, but not registered, under filed by the Investment Company Act of 1940, as amended.
(t) In connection Issuers with the offering, until Commission or retained by the Initial Purchasers shall have notified the Company Issuers under Rule 433 of the completion Act; provided that the prior written consent of [ ] on behalf of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers Purchasers shall be deemed to have been given in respect of the Permitted Free Writing Prospectuses. The Issuers agree that (i) they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an issuer free writing prospectus, and (ii) have complied and will comply, as the case may be, with such covenants the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenantsCommission, legending and record keeping.
Appears in 1 contract
Samples: Purchase Agreement (Empire District Electric Trust Ii)
Agreements of the Issuers. The Issuers, jointly and ------------------------- severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use in accordance with the provisions of the Act and with securities or "blue sky" laws of the jurisdictions in which the Notes are offered of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use of, and shall not have reasonably objected to to, such amendment or supplement within a reasonable time, but in any event not longer than two business days after being furnished with a copy of such amendment or supplement.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to any taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers shall use their commercially reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchasers, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (in- cluding, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky "blue sky" or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") market of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement agreement are not consummated or this Agreement agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers Issuer shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(h) To use their reasonable best efforts to do and perform in all material respects all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesNotes except to the extent any such condition has been waived in writing by Initial Purchasers.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their commercially reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to use their commercially reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general gen- eral advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to use their commercially reasonable best efforts to cause their other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their material agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their commercially reasonable best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their commercially reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared final internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails Issuers mail or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (Us Oncology Inc)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree Each of the Issuers agrees with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any untrue statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue omit to state a material fact required to be stated therein or that requires the making of any additions to or changes in the Offering Memorandum in order necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are were made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to (y) will comply with applicable law.
(b) The Company will furnish to the Initial Purchasers, without charge, such number of copies of the Company shall promptly notify Offering Memorandum, as it may then be amended or supplemented, as the Initial Purchasers of such event and may reasonably request.
(subject to Section 4(b)c) prepare an appropriate The Issuers will not make any amendment or supplement to the Preliminary Offering Memorandum so that (i) the statements in or to the Offering Memorandum, as amended Memorandum of which the Initial Purchasers shall not previously have been advised or supplemented, willto which they shall object in writing after being so advised unless, in the light reasonable opinion of counsel to the circumstances at the time that the Offering Memorandum Company, such amendment or supplement is delivered necessary to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify Prior to the execution and delivery of this Agreement, the Issuers have delivered or register will deliver to the Original Notes 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 Issuers consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the 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 Issuers. The Issuers consent to the use of the Offering Memorandum (and of any amendment or supplement thereto prepared in accordance with Section 4(c)) 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 Securities may be sold, in connection with the offering and sale of the Securities.
(e) required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (y) will comply with applicable law, the Issuers will, in each such case subject to Section 4(c), promptly prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers that number of copies thereof as they shall reasonably request.
(f) The Issuers will cooperate with the Initial Purchasers and with their counsel in connection with the 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 will file such consents to continue service of process or other documents necessary or appropriate in order to effect such qualification qualification; provided that in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no event shall an Issuer shall be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to execute a take any action that would subject it to general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subject.
(eg) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of So long as any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities lawsSecurities are outstanding, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) will furnish to the Initial Purchasers relating thereto)(i) as soon as reasonably practicable, (vi) the furnishing a copy of such copies each report of the Preliminary Offering Memorandum Company filed with the Securities and Exchange Commission (the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("PortalCommission") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xiiii) the performance by from time to time such other information concerning the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of as the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial PurchasersPurchasers may reasonably request.
(gh) To use The Issuers will initially deposit the net proceeds from the sale of the Securities in the Escrow Account and thereafter will apply the proceeds from the sale of the Original Notes, Securities in accordance with the Equity Financing and initial borrowings description set forth under the New Credit Agreement in substantially the manner described "Use of Proceeds" in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesMemorandum.
(i) Not to, and not offer to permit any sell the Securities by means of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with or by means of any offer or sale of directed selling efforts (as defined under Regulation S and the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original NotesCommission's releases related thereto).
(lj) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any case, The Issuers will assist the Initial Purchasers and any of their affiliates, as in causing the Securities to whom be eligible for trading on the Company and the Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.PORTAL market.
(mk) From and after the Closing Date, for so long as any of the Notes remain Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities 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 will furnish to make available 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 by to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to (i) any holder or beneficial owner of Notes permit compliance with Rule 144A in connection with any sale resales of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documentsSecurities.
(nl) To The Issuers 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 Securities in a manner that would require the registration under the Securities Act of the sale by the Issuers to the Initial Purchasers or by the Initial Purchasers to the Eligible Purchasers of the Securities.
(m) The Issuers agree to comply with all of their the terms and conditions of the Registration Rights Agreement, and the Company agrees to comply with all agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations representation letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-book entry" transfer.
(pn) To use their reasonable best efforts to effect the inclusion of the Original Notes into any necessary supplemental indentures in Portalconnection therewith.
(qo) The Issuers shall not resell any Securities that have been acquired by them.
(p) Prior to the Closing Date, to the Company will furnish without charge to the Initial Purchasers, (i) as soon as reasonably practicable after they have been received by Holdingsprepared, a copy of any regularly prepared internal unaudited interim consolidated financial statements of the Company and its subsidiaries for any accounting period of the Company subsequent to the period covered by the most recent consolidated financial statements of the Company appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (TMC Texas Inc)
Agreements of the Issuers. The Issuers, jointly and severallyas applicable, covenant and agree with the Initial Purchasers as followseach of you that:
(a) To furnish the Initial Purchasers and those persons identified They will advise you promptly and, if requested by the Initial Purchasersany of you, without chargeconfirm such advice in writing, with as many copies of the Preliminary happening of any event during such period as in your reasonable judgment you are required to deliver an Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution sales of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, Securities by you which makes any statement of a material fact made in the Offering Memorandum, as then amended or supplemented, Memorandum untrue or that which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they were made, not misleading. Each of the Issuers shall use its reasonable best efforts to prevent the issuance of any 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 regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Issuers shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) They will not make any amendment or supplement to the Offering Memorandum, of which you shall not previously have been advised and provided a copy within two business days or such shorter period of time as may be reasonable under the circumstances prior to the delivery thereof or to which you shall reasonably object. The Issuers shall promptly prepare, upon your reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with resales.
(c) The Company will furnish to you and to those persons who you identify to the Company, without charge, as many copies of the Offering Memorandum (and of any amendments or supplements thereto) as you may reasonably request. The Issuers consent to your use of the Offering Memorandum, and any amendments and supplements thereto, in connection with offers and resales of the Securities contemplated hereunder.
(d) If, during such period as in your reasonable judgment you are maderequired to deliver the Offering Memorandum in connection with sales of the Securities by you, any event shall occur as a result of which it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in light of the circumstances existing as of the date the Offering Memorandum is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable any law, the Company shall Issuers will promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as so amended or supplemented, willwill not, in the light of the circumstances at existing as of the time that date the Offering Memorandum is delivered to prospective Eligible Purchasersso delivered, not be misleading misleading, and (ii) the Offering Memorandum will comply with applicable law, and will furnish to you without charge such number of copies thereof as you may reasonably request.
(de) To qualify The Issuers will cooperate with you and your counsel in connection with the registration or register qualification of the Original Notes Securities for offer and sale by you under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may request and to continue such qualification in effect so long as required for (provided, that none of the Exempt Resales. Notwithstanding the foregoing, no Issuer Issuers shall be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a take any action that would subject it to general consent to service of process in any such jurisdiction in which it is not now so subject or to subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority). The Issuers shall use their reasonable best efforts to prevent the issuance of any stop order or order suspending the will continue such qualification or exemption of any in effect so long as required by law for distribution of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timeSecurities.
(f) After the Securities have been exchanged, the Company will, so long as the Securities are outstanding, 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 and 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 of the Exchange 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 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 generally of the Securities, and such other information concerning the Company and its Subsidiaries as you reasonably may request.
(g) For so long as and at any time that it is not subject to Section 13 or 15(d) of the Exchange Act, JCC, upon request of any holder of the Securities, will furnish to such holder, and to any prospective purchaser or purchasers of the Securities designated by such holder, information satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act; PROVIDED, HOWEVER, that the Company's obligations under this Section 4(g) shall terminate upon the earlier of (i) the date the Exchange Offer is concluded and the exchange of the Exchange Securities for 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 proviso, the Company shall be obligat- ed 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.
(h) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may request.
(i) Whether or not the transactions contemplated by this Agreement hereby are consummated or this Agreement becomes effective or is terminated, to the Company and JCC will pay and be responsible for all costs, expenses, fees, disbursements (including fees, expenses fees and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary taxes in connection with or similar taxes incident to and in connection with: (i) the preparationprinting, printing processing, distribution and distribution delivery of the Preliminary Offering Memorandum and the each Offering Memorandum and all amendments and or supplements thereto, (ii) the printing processing, execution, distribution and delivery of this Agreement, any memorandum describing state securities or Blue Sky laws and all expenses (including travel expenses) of the Issuers other agreements, memoranda, correspondence and other documents printed, distributed and delivered in connection with any meetings with prospective investors in the Original Notesoffering of the Securities, (iii) the preparationregistration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the jurisdictions referred to in paragraph 3(e) above including, notarization in each case, the fees and disbursements of counsel relating to such registration or qualification and memorandum relating thereto and any filing fees in connection therewith), (if necessaryv) furnishing such copies of the Offering Memorandum, and all amendments and supplements to any of them, as may be reasonably requested by you, (vi) filing, registration and clearance with the NASD(as defined herein) in connection with the offering of the Securities (including any filing fees in connection therewith and the fees and disbursements of counsel relating thereto) and the designation of the Securities as PORTAL Securities, (vii) the rating agencies, (viii) the printing, processing, execution, distribution and delivery of the Note Transaction Documents and all other agreements, memoranda, correspondence and documents prepared other documents, printed, distributed and delivered in connection with this Agreement the Transaction Documents and with the Exempt Resales, (ivix) the issuance, transfer and delivery performance by the Company and JCC of their other obligations under this Agreement, the Co-Issuer cost of their personnel and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitationother internal costs, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to engraving the Initial Purchasers relating thereto), (vi) certificates representing the furnishing of such copies of the Preliminary Offering Memorandum and the Offering MemorandumSecurities, and all amendments expenses and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) taxes incident to the preparation of certificates for the Notes, (viii) the application for quotation sale and delivery of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasersyou.
(gj) To The Company and JCC will use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsProceeds."
(hk) To The Company will use its reasonable best efforts to, and will use its reasonable best efforts to cooperate with you to, cause the Securities to be designated PORTAL securities in accordance with the rules and regulations of the National Association of Securities Dealers (the "NASD").
(l) The Issuers will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities.
(m) The Issuers will use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(in) Not toExcept in connection with the Exchange Offer or the filing of the Shelf Registration Statement, as the case may be, the Issuers will not, and will not to authorize or knowingly permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other affiliates and any person acting on their behalf (other thanto, in solicit any case, offer to buy or offer to sell the Initial Purchasers and any Securities by means of their affiliates, as to whom the Company and the Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of including, without limitation, as such terms are used in Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the manner involving a public offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 Act and during any period in which the Company is not subject to Section 13 or 15(d4(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of Neither the Company and its subsidiaries for nor any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates affiliate (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the CompanyCompany will offer, sell or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Co-Issuer nor any Act) which could reasonably be expected to be integrated with the sale of their affiliates the Securities in a manner that would require the registration of the Securities under the Act.
(p) Each Security will make bids bear the following legend until such legend shall no longer be necessary or purchases for advisable because the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything Securities are no longer subject to the contrary in the covenants contained in paragraphsrestrictions on transfer described therein: "THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (jTHE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (kB) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (l2), (r3) and OR (t7) of this Section 4OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA(2) AGREES THAT IT WILL NOT, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (including through the enforcement of their rights under the UPATAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) to cause such person to comply with such covenants.UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY GUARANTOR, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in Pricing Supplement. The Issuers shall not amend or supplement the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect or the Pricing Supplement except as contemplated below, in which case the Issuers shall have previously furnished a copy of such proposed amendment or supplement to the Notes Representative and (ii) such other changes as to which the Representative shall not have consentedreasonably objected. Not to The Issuers shall not amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers Representative shall previously have been advised of such proposed amendment or supplement at least two business days a reasonable period of time prior to the proposed use use, and shall not have reasonably objected to such amendment or supplement. Before making, preparing, using, authorizing, approving or distributing any Company Supplemental Disclosure Document (as defined below), the Company will furnish to the Representative a copy of such written communication for review and will not make, prepare, use, authorize, approve or distribute any such written communication to which the Representative reasonably objects.
(c) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package to comply with law, the Issuers will notify the Initial Purchasers thereof as soon as reasonably practicable and forthwith prepare and (subject to Section 4(b) hereof) furnish to the Initial Purchasers such amendments or supplements to any of the Pricing Disclosure Package as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that any of the Pricing Disclosure Package will comply with all applicable law. If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) hereof) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law. The Company hereby expressly acknowledges that the indemnification and contribution provisions of Sections 6 and 7 hereof are specifically applicable and relate to each Offering Memorandum and any amendment or supplement thereto referred to in this Section 4.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection withwith the transactions contemplated hereby, including, without limitation: (i) the preparation, printing and distribution (including any form of electronic distribution) of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial PurchasersPurchasers (including all printing and engraving costs), (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies inclusion of the Preliminary Offering Memorandum and Securities in the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resalesbook-entry system of DTC, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiviii) the fees and expenses of the Trustee Trustee, Collateral Agent and its counsel and their counsel, (xiiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the and (x) all out-of-pocket legal fees, expenses costs and disbursements of expenses, including filing fees, title fees and search fees, stamp, documentary or similar taxes incurred by counsel to the Initial PurchasersPurchasers in connection with the preparation, negotiation and implementation of the Security Documents, and the creation and perfection of the security interests in the Collateral pursuant to the terms thereof (provided that the fees of counsel paid pursuant to this clause (x) shall be supported by reasonable documentation).
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries affiliate (as such term is defined in Rule 501 under the Act) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not During the period of one year after the Closing Date, unless permitted and pursuant to permit any Issuer an exemption under Rule 144 of the Securities Act, not to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, except for Securities purchased by the Company or any of its affiliates and that constitute "restricted securities" resold in a transaction registered under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing DateSecurities Act.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Act in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original NotesSecurities.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply cooperate with all of their agreements set forth in and assist the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts Initial Purchasers to obtain approval of the Original Notes by DTC Securities to be eligible for "book-entry" transferclearance and settlement through DTC.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qo) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rp) Not toWithout the prior consent of the Representative, not to make, and not to permit any of their its affiliates or anyone acting on their its or their its affiliates behalf to make, any offer relating to the Securities that, if the offering of the Securities contemplated by this Agreement were conducted as a public offering pursuant to a registration statement filed under the Act with the Securities and Exchange Commission (other than the Initial Purchasers and their affiliates“Commission”), distribute prior would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act (any such offer is hereinafter referred to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandumas a “Company Supplemental Disclosure Document”).
(sq) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amendedamended (the “Investment Company Act,” which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder).
(tr) In connection with the offeringoffering of the Securities, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything Securities.
(s) During the period from the date hereof through and including the date that is 60 days after the date hereof, without the prior written consent of the Representative, offer, sell, contract to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) sell or otherwise dispose of this Section 4, solely with respect to any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement or any Subsidiary and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers Underwriters as follows:
(a) To furnish the Initial Purchasers such information as may be required and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer consent otherwise to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers cooperate in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to qualifying the Notes for offering and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes sale under the securities or blue sky laws of such jurisdictions states as the Initial Purchasers you may request designate and to continue maintain such qualification qualifications in effect so long as required for the Exempt Resalesdistribution of the Notes; provided that no Issuer shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Notes); and to promptly advise you of the receipt by any Issuer of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation the offer and sale of the Notes or the Guarantees in any jurisdiction in which state if it shall be determined by counsel to the Underwriters that such qualification is not so qualified or to execute a general consent to service preempted by reason of process in any such jurisdiction or subject itself to taxation in excess Section 18 of a nominal dollar amount in any such jurisdiction where it is not then so subjectthe Act.
(eb) To make immediately available to the Underwriters in New York City, and from time to time to furnish to the Underwriters, 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 reasonably request for the purposes contemplated by the Act; if 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 Issuers will prepare promptly upon request such amendment or amend ments to the Registration Statement and such prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(c) To advise the Initial Purchasers you promptly and, and (if requested by the Initial Purchasers, you) to confirm such advice in writing, of (i) when any post-effective amendment to the issuance by any securities commission Registration Statement becomes 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 under such Rules).
(d) To advise you promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or 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 qualification effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or exemption from qualification removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Registration Statement or Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which you shall reasonably object in writing.
(e) Subject to Section 4(n) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Issuers with the Commission in order to comply with the Exchange Act subsequent to the date of the Original Notes Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities lawsNotes, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting promptly notify you of such order at the earliest possible timefiling.
(f) Whether If necessary or not appropriate, to file a registration statement pursuant to Rule 462(b) under the transactions contemplated by Act.
(g) To furnish to you promptly for a period of three years from the date of this Agreement (i) copies of any reports or other communications required to be furnished to holders of the Notes pursuant to the Indenture, (ii) copies of documents or reports filed with any national securities exchange on which any class of securities of any Issuer is listed, without exhibits unless requested, and (iii) such other information as you may reasonably request regarding any Issuer.
(h) To advise the Underwriters promptly of the happening of any event within the time during which a Prospectus relating to the Notes is required to be delivered under the Act which could require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circum stances under which they are consummated or this Agreement becomes effective or is terminatedmade, not misleading, and, during such time, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission.
(i) 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 but not later than March [ ], 2004.
(j) To furnish to you three copies 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).
(k) To furnish to you as early as practicable prior to the Closing Date, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of Parent and the Subsidiaries (as hereinafter defined) which have been read by the Company’s independent certified public accountants, as stated in their letter to be furnished pursuant to Section 7(b) hereof.
(l) To apply the net proceeds from the sale of the Notes in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(m) To pay all costs, expenses, fees and taxes (other than any transfer taxes and fees, and disbursements of counsel for the Underwriters except as set forth under Section 6 hereof and (iii), (iv) and (vi) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including feescosts of mailing and shipment), expenses (ii) the registration, issue, sale and delivery of the Notes, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Notes for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Notes on any securities exchange or qualification of the Notes for quotation on the Nasdaq Stock Market and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Notes by NASD Regulation, Inc., including the legal fees and filing fees and other disbursements of counsel to the Issuers) reasonably incurred and stampUnderwriters, documentary or similar taxes incident to and in connection with: (ivii) the preparation, printing costs and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers relating to presentations or meetings undertaken in connection with any meetings with the marketing of the offer and sale of the Notes to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the Original Notesroad show presentations, travel, lodging and other expenses incurred by the officers of the Issuers, any such consultants, and the cost of any aircraft chartered in connection with the road show, (iiiviii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt ResalesAgreement, (ivix) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial PurchasersUnderwriters, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viix) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixxi) the approval of the Notes by The the Depository Trust Company ("“DTC"”) for "book-entry" entry transfer, (xxii) the rating of the Notes by rating agencies, (xixiii) the fees and expenses of the Trustee and its counsel counsel, and (xiixiv) the performance by of the Issuers of their Issuers’ other obligations under the Note Documents. In addition, if the transactions contemplated by Except as provided in this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial PurchasersSection 4(m) and Section 6, the Issuers shall pay not be responsible for your expenses, including the feesexpenses of your counsel, expenses and disbursements transfer taxes on resale of counsel to any of the Initial PurchasersNotes.
(gn) To use furnish to you, before filing with the proceeds from Commission subsequent to the sale effective date of the Original NotesRegistration Statement and during the period referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(o) If, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment thereto to be declared effective before the offering of the Notes may commence, the Equity Financing Issuers will endeavor to cause such post-effective amendment to become effective as soon as possible and initial borrowings under will advise you promptly and, if requested by you, will confirm such advice in writing, when the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsRegistration Statement or such post-effective amendment has become effective."
(hp) Until 90 days following the Closing Date, not, without the prior written consent of UBS Warburg LLC, to sell or contract to sell or announce the offering of any debt securities of any of the Issuers with characteristics and terms similar to those of the Notes.
(q) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement the Note Documents by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(nr) To comply with in all of their agreements set forth in the Registration Rights Agreement.
(o) To comply material respects with all of their obligations set forth in the representations letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as followshereby agree:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly after obtaining actual knowledge (and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, ) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority. The Issuers shall , or (B) the happening of any event not otherwise disclosed pursuant to one or more disclosure schedules to the Transaction Documents that makes any statement of a material fact made in the Holdings SEC Documents untrue or that requires the making of any additions to or changes thereto in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) use their commercially reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Original Notes Securities under any state securities or blue sky laws, and (iii) 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 of the Original Notes Securities under any securities such laws, the Issuers shall use their commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(fb) To cooperate with the Initial Purchaser and the Initial Purchaser's counsel in connection with the qualification of the Securities under the securities or blue sky laws of such jurisdictions as the Initial Purchaser may request and continue such qualification in effect so long as reasonably required for Exempt Resales; provided, that the Issuers shall -------- not be required in connection therewith to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction where it is not now so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(c) Whether or not any of the transactions contemplated by this Agreement Transactions are consummated or this Agreement becomes effective or is terminated, to pay (i) all costs, expenses, fees, disbursements (including fees, expenses fees and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (iA) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection with this Agreement and with the Exempt Resalesherewith, (ivB) the issuanceprinting, transfer processing and distribution (including, without limitation, word processing and duplication costs) and delivery by the Company and the Co-Issuer and the Guarantors of, each of the Original Notes and the Guarantee, respectively, to the Initial PurchasersDocuments, (vC) the issuance and delivery of the Securities, including the fees of the Trustee, (D) the qualification or registration of the Notes Securities for offer and sale under the securities or blue sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser's counsel relating thereto), (vi) the furnishing of to such copies of the Preliminary Offering Memorandum and the Offering Memorandumregistration or qualification, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viiE) the preparation of certificates for the NotesSecurities, (viiiii) all fees and expenses of the counsel and accountants of the Issuers, (iii) all expenses and listing fees in connection with the application for quotation of the Notes in The Portal Market the NASD Automated Quotation System -- PORTAL ("PortalPORTAL"), (iv) all fees and expenses (including fees and expenses of counsel) of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the Issuers in connection with approval of the Notes by The Depository Trust Company ("DTC") DTC for "book-entry" transfer, (xv) all fees charged by rating agencies in connection with the rating of the Notes by rating agenciesNotes, (xivi) the all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee and its counsel (vii) all out-of-pocket fees and expenses (xiiincluding reasonable fees and expenses of counsel) the performance incurred by the Issuers of their other obligations under Initial Purchaser in connection with the Note Documents. In additionpreparation, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either negotiation and execution of the Initial PurchasersDocuments, its services to be rendered under this agreement and the Issuers shall pay consummation of the fees, expenses and disbursements of counsel to the Initial PurchasersTransactions.
(gd) To make the Equity Contribution to Airways from the proceeds of the Holdings' Note Issuance and to use the Equity Contribution, existing cash balances of Airways and the proceeds from the sale of the Original Series A Notes to satisfy in full all monetary obligations with respect to the 10.50% Senior Secured Notes due 2001 of Airways and the 10.25% Senior Notes due 2001 of Holdings and to pay all transaction costs relating to such repayment.
(e) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the Equity Financing covenants or the performance of the Indenture (and, to the extent it may lawfully do so, each of Airways and initial borrowings under Holdings hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the New Credit Agreement in substantially execution of any power granted to the manner described Trustee in the Offering Memorandum under Indenture or the caption "Use Collateral Trustee in the Security Documents but shall suffer and permit the execution of proceedsevery such power as though no such law had been enacted)."
(hf) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them the Documents prior to and after the Closing Date, including, but not limited to:
(A) to effect the inclusion of the Notes in PORTAL;
(B) to list all shares of Holdings' Common Stock issued or issuable upon the exercise of the Warrants on any securities exchange on which Holdings' Common Stock is then listed or to authorize for quotation on the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or, if not then so listed, the National Market System of NASDAQ all Holdings' Common Stock issued or issuable upon exercise of the Warrants if the Holdings' Common Stock is then so authorized for quotation; and
(C) To prepare and file with the Commission promptly after the Issue Date, but in no event later than the 120/th/ day after the Issue Date, a Warrant Shelf Registration Statement, (ii) use its best efforts to cause such Warrant Shelf Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof, but in no event later than the 180/th/ day after the Closing Date and (iii) use its best efforts to satisfy keep the Warrant Shelf Registration Statement effective until April 12, 2009 or such shorter period that will terminate when all conditions precedent on their part to the delivery of the Original shares of Holdings' Common Stock issuable upon exercise of the Warrants have been sold pursuant to a registration statement filed under the Securities Act covering such shares of Holdings' Common Stock.
(D) To prepare and file with the Commission promptly after the Issue Date, but in no event later than the 120/th/ day after the Issue Date, a Note Shelf Registration Statement, (ii) use its best efforts to cause such Note Shelf Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof, but in no event later than the 180/th/ day after the Closing Date and (iii) use its best efforts to keep the Note Shelf Registration Statement effective until April 12, 2009 or such shorter period that will terminate when all of the Notes have been sold pursuant to a registration statement filed under the Securities Act covering such Notes.
(ig) Not to, and not to permit any ensure that no affiliate (as defined in Rule 501(b) of their subsidiaries tothe Act) of either of the Issuers will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Act) that would be integrated with the sale of the Original Units, the Series A Notes or the Warrants in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers Purchaser of the Units, the Series A Notes or any Eligible Purchasersthe Warrants.
(jh) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for For so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and outstanding, during any period in which either of the Company Issuers is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available available, upon request request, to any owner of the Notes in connection with any sale thereof, and any prospective purchaser of such Notes from such owner, the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documentsAct.
(ni) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations representation letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-book entry" transfer.
(pj) To use their reasonable best efforts For so long as the Notes are outstanding, and whether or not required to effect do so by the inclusion rules and regulations of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersCommission, (i) as soon as they have been received by Holdingsto furnish to the Trustee and deliver or cause to be delivered to the holders of the Notes and the Initial Purchaser (A) 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 Issuers were required to file such Forms, including for each, a copy "Management's Discussion and Analysis of any regularly prepared internal financial statements Financial Condition and Results of the Company and its subsidiaries for any period subsequent Operations" and, with respect to the period covered annual information only, a report thereon by the financial statements appearing in Issuers' independent certified public accountants, and (B) all reports that would be required to be filed with the Offering MemorandumCommission on Form 8-K if the Issuers were required to file such reports, and (ii) copies of all other reports from and other communications after the time the Exchange Offer Registration Statement or the Note Shelf Registration Statement (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other registration statement with respect to the Notes) is filed with the Commission, to file such information with the Commission so long as the Initial Purchasers shall reasonably requestCommission will accept such filings.
(rk) Not Except in connection with the Registered Exchange Offer or the filing of the Note Shelf Registration Statement, not to, and not to authorize or permit any of their affiliates or anyone person acting on their or their affiliates behalf to to, (other than the Initial Purchasers and their affiliates), i) distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than Securities, or (ii) solicit any offer to buy or offer to sell the Preliminary Offering Memorandum and the Offering Memorandum.
Securities by means of any form of general solicitation or general advertising (s) During the period of two years after the Closing Date orincluding, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940without limitation, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined terms are used in Rule 501(b) of Regulation D under the Act) toor in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(l) Not to directly or indirectly, without the prior consent of the Initial Purchaser, offer, sell, grant any option to purchase, or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any securities of either alone of the Issuers for a period of six months after the Closing Date, except as contemplated by the Note Registration Rights Agreement, the Holdings SEC Documents (including each of the stock option plans described therein), the Warrant Registration Rights Agreement , the Warrant Agreement, and the Holdings Note Agreement.
(m) To take all actions necessary to ensure that a sufficient number of shares of Holdings' Common Stock will be authorized and available for issuance upon the exercise of the Warrants.
(n) At any time prior to the completion of the resale by the Initial Purchaser of the Units, the Notes or with one or more other personsthe Warrants, bid for or purchase for any account to notify the Initial Purchaser promptly in which they writing upon becoming aware if either of the Issuers or any of their affiliates have Affiliates becomes a beneficial party in interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely a disqualified person with respect to any person who is selling an ownership interest employee benefit plan. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPAmeanings as set forth in Section 6(bb) to cause such person to comply with such covenantshereof.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Initial Supplement, the Pricing Supplement and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchaser the Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from Initial Supplement and the corresponding information contained in Pricing Supplement. Not to further amend or supplement the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to or amend or supplement the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have Purchaser has completed their distribution of the Original Notes, any event shall occur that, in the reasonable judgment of the Company Issuers or in the reasonable judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event event, or the Initial Purchaser shall promptly notify the Issuers, as the case may be, and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the qualification or register registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers Purchaser may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedterminated other than by reason of a default by the Initial Purchaser, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and all stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Initial Supplement, the Pricing Supplement and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, ; (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, ; (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, ; (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors Issuers of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, Purchaser; (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final “Blue Sky Sky” or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), ; (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal"“PORTAL”) of the National Association of Securities Dealers, Inc. ("“NASD"”), including, but not limited to, all listing fees and expenses, ; (ixvii) the approval of the Notes by The Depository Trust Company ("“DTC"”) for "“book-entry" ” transfer, ; (xviii) the rating of the Notes by rating agencies, ; (xiix) the fees and expenses of the Trustee and its counsel counsel; (x) the cost of any aircraft chartered in connection with the roadshow and (xiixi) the performance by the Issuers of their other obligations under the Note Documents; provided, however, except as set forth above in subparagraph (v) the Initial Purchaser shall be responsible for all legal fees and expenses of its legal counsel; and provided further, however, that except as otherwise expressly set forth in this Agreement, the Initial Purchaser shall pay its own costs and expenses, including costs and expenses relating to the roadshow. In addition, if the transactions contemplated by this Agreement are not consummated or for any reason other than the termination of this Agreement is terminated other than by reason of a pursuant to Section 11 hereof or the default by either of the Initial PurchasersPurchaser in its obligations hereunder, the Issuers shall pay shall, in addition to paying the feesamounts described above, expenses reimburse the Initial Purchaser for all of its reasonably incurred out-of-pocket expenses, including the reasonably incurred fees and disbursements of counsel to the Initial Purchasersits counsel.
(g) To use the proceeds from the sale of the Original Notes, Notes and the Equity Financing and initial borrowings under Offering in a manner consistent with the New Credit Agreement in substantially the manner caption “Use of Proceeds” as described in the Offering Memorandum under the caption "Use of proceedsPricing Disclosure Package."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not toto permit any Issuer, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their reasonable best efforts to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to permit any Issuer to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to use their reasonable best efforts to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer Issuers will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer and to use their reasonable best efforts to obtain approval of the Original Notes by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in PortalPORTAL.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received by Holdingsprepared, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that any of the Company mails Issuers mail or otherwise make available to their security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(r) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers Purchaser and their its affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum Memorandum, the Initial Supplement, the Pricing Supplement and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end an investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest in any of the Notes; and none of the Company, the Co-Issuer Issuers nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes. Notwithstanding anything to The Company and the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect Initial Purchaser agree that prior to any person who is selling an ownership interest in registration of the Company to Holdings Notes pursuant to the UPARegistration Rights Agreement, or at such earlier time as may be so required, the Issuers Indenture shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights qualified under the UPA) Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and that it will cause to cause such person to comply with such covenantsbe entered into any necessary supplemental indentures in connection therewith.
Appears in 1 contract
Samples: Purchase Agreement (Phi Inc)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement without the written consent of the Representatives. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) IfSubject to Section 4(p), if, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that of the Offering Memorandum is delivered to prospective Eligible Purchaserssale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants; provided, however, that the Company is obligated to pay only fifty percent (including travel expenses50%) of the Issuers cost and expense of any aircraft chartered in connection with any meetings with prospective investors in the Original Notesroad show, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies inclusion of the Preliminary Offering Memorandum and Securities in the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resalesbook-entry system of DTC, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiviii) the fees and expenses of the Trustee and its counsel and (xiiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Preliminary Offering Memorandum under the caption "“Use of proceedsProceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph Section 4(l) have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "book-“book entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "book-“book entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(qo) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iiiii) such other information as the Initial Purchasers shall reasonably request.
(rp) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any electronic roadshow and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Representatives and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(sq) During the period of two years one year after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-closed end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(tr) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything Securities.
(s) During the period from the date hereof through and including the date that is 90 days after the date hereof, without the prior written consent of Deutsche Bank Securities Inc., offer, sell, contract to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) sell or otherwise dispose of this Section 4, solely with respect to any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement or any Subsidiary and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) IfSubject to Section 4(q), if, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies inclusion of the Preliminary Offering Memorandum and Securities in the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resalesbook-entry system of The Depository Trust Company (“DTC”), (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiviii) the fees and expenses of the Trustee and its counsel counsel, and (xiiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Offered Notes in substantially the manner described in the Preliminary Offering Memorandum under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any electronic roadshow and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects, or any amendment or supplement thereto prepared in accordance with Section 4(b).
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 90 days after the date hereof, without prior written consent of this Section 4the Representative, solely with respect offer, sell, contract to sell or otherwise dispose of any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPAor any Subsidiary (other than Xxxxx Energy Partners, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement L.P. and its subsidiaries) and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Samples: Purchase Agreement (Holly Corp)
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with 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. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not To prepare the Offering Memorandum in a form approved by the Initial Purchasers and not to make any changes or additions to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes Securities and (ii) such other changes and additions as to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, at any time prior to the time that expiration of nine months after the Initial Purchasers have completed their distribution date of the Original NotesOffering Memorandum, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and reasonable fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes Securities in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses(vii) the inclusion of the Securities in the book-entry system of DTC, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (xviii) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them it prior to or after the Closing Date and to satisfy all conditions precedent on their its part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other affiliates over which they have control 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not In connection with Securities offered or sold in an off-shore transaction, not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which neither the Company nor Parent (so long as Parent acts as Guarantor) is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4144A(d) (4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "book-entry" transfer and to use their reasonable best efforts to obtain approval of the Original Notes Securities by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) prior to the Closing Date, as soon as they have been received prepared by HoldingsParent, a copy of any regularly prepared internal financial statements of Parent and the Company and its subsidiaries Subsidiaries (including condensed consolidating financial information on the same basis as that included in the Offering Memorandum) for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, Memorandum and (ii) copies during a period of five years after the Closing Date (A) all other reports and other communications (financial or otherwise) that Parent (so long as Parent acts as Guarantor) or the Company mails or otherwise make makes available to its respective security holders or furnishes to or files with the Commission and (iiiB) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates' behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, registered under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company Issuers of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts to effect the inclusion of the Securities in Portal.
(u) During the period from the date hereof through and including through the enforcement date that is 90 days after the date hereof, without the prior written consent of their rights under the UPA) Representative, offer, sell, contract to cause such person to comply with such covenantssell or otherwise dispose of any debt securities issued or guaranteed by either Issuer or any Subsidiary and having a tenor of more than one year.
Appears in 1 contract
Samples: Purchase Agreement (Dennys Corp)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement without the written consent of the Representatives. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) IfSubject to Section 4(q), if, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that of the Offering Memorandum is delivered to prospective Eligible Purchaserssale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any Issuer Written Communication (as defined below) and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies inclusion of the Preliminary Offering Memorandum and Securities in the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resalesbook-entry system of DTC, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes Securities by rating agencies, (xiviii) the fees and expenses of the Trustee and its counsel, (ix) the creation and perfection of Liens on the Collateral pursuant to the provisions of the Security Documents, including filing fees, mortgage recording taxes, and the reasonable fees and expenses of counsel in connection therewith and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Preliminary Offering Memorandum under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph Section 4(l) have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "book-“book entry" ” transfer and to use their best efforts to obtain approval of the Original Notes Securities by DTC for "book-“book entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iiiii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, any electronic roadshow and the Final Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any Issuer Written Communication (as defined below), the Company will furnish to the Representatives and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(sr) During the period of two years one year after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-closed end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 90 days after the date hereof, without the prior written consent of this Section 4UBS Securities LLC, solely with respect offer, sell, contract to sell or otherwise dispose of any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement or any Subsidiary and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and Issuers agree with the Initial Purchasers as follows:
(a) To furnish Until the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies completion of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer consent to the use distribution of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, Securities by the Initial Purchasers to Eligible Purchasers, the Issuers will advise the Initial Purchasers promptly and, if requested, will confirm such advice in connection with Exempt Resales.
7 -7- writing, of any material adverse change in the condition (bfinancial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries (as defined), taken as a whole, or (y) Not of the happening of any event or the existence of any condition which requires any amendment or supplement to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (ias then amended or supplemented) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement so that the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall (x) will not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, contain any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any untrue statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue omit to state a material fact required to be stated therein or that requires the making of any additions to or changes in the Offering Memorandum in order necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are were made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to (y) will comply with applicable law, the Company shall promptly notify .
(b) The Issuers will furnish to the Initial Purchasers Purchasers, without charge, such number of such event and copies of the Offering Memorandum, as they may then be amended or supplemented, as they may reasonably request.
(subject to Section 4(b)c) prepare an appropriate The Issuers will not make any amendment or supplement to the Preliminary Offering Memorandum so that (i) the statements in or to the Offering Memorandum, as amended Memorandum of which the Initial Purchasers shall not previously have been advised or supplemented, willto which they shall object in writing after being so advised unless, in the light opinion of counsel to the circumstances at the time that the Offering Memorandum Issuers, such amendment or supplement is delivered necessary to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify Prior to the execution and delivery of this Agreement, the Issuers have delivered or register will deliver to the Original Notes 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 Issuers consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the 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 Issuers. The Issuers consent to the use of the Offering Memorandum (and of any amendment or supplement thereto prepared in accordance with Section 4(c)) 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 Securities may be sold, in connection with the offering and sale of the Securities.
(e) Eligible Purchasers, any event shall occur or condition shall exist that in the judgment of the Issuers or in the opinion of the Initial Purchasers based on advice of counsel requires any amendment or supplement to the Offering 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 the light of the circumstances under which they were made, not misleading, or (y) will comply with applicable law, the Issuers 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 that number of copies thereof as they shall reasonably request.
(f) The Issuers will cooperate with the Initial Purchasers and with their counsel in connection with the 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 will file such consents to continue service of process or other documents necessary or appropriate in order to effect such qualification qualification; provided that in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no event shall an Issuer shall be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to execute a take any action which would subject it to general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subject.
(eg) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of So long as any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities lawsSecurities are outstanding, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) will furnish to the Initial Purchasers relating thereto)(i) as soon as reasonably practicable, (vi) the furnishing a copy of such copies each report of the Preliminary Offering Memorandum Company filed with the Securities and Exchange Commission (the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("PortalCommission") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xiiii) the performance by from time to time such other information concerning the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of as the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial PurchasersPurchasers may reasonably request.
(gh) To use The Issuers will apply the proceeds from the sale of the Original Notes, Securities in accordance with the Equity Financing and initial borrowings description set forth under the New Credit Agreement in substantially the manner described "Use of Proceeds" in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesMemorandum.
(i) Not toas permitted by the Act, and the Issuers will not to permit distribute any offering material in connection with the Exempt Resales. Except following the effectiveness of their subsidiaries to, sell, offer for sale an Exchange Offer Registration Statement or solicit offers to buy any security a Shelf Registration Statement (each as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any caseRegistration Rights Agreements), the Initial Purchasers Issuers will not solicit any offers to buy and any will not offer to sell the Securities by means of their affiliates, as to whom the Company and the Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with or by means of any offer or sale of directed selling efforts (as defined under Regulation S and the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original NotesCommission's releases related thereto).
(lj) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any case, The Issuers will assist the Initial Purchasers and any of their affiliates, as in causing the Securities to whom be eligible for trading on the Company and the Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.PORTAL market.
(mk) From and after the Closing Date, for so long as any of the Notes remain 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 the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company will furnish to make available 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 by to be delivered pursuant to Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes permit compliance with Rule 144A in connection with any sale resales of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documentsSecurities.
(nl) To The Issuers agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale by the Issuers to the Initial Purchasers or by the Initial Purchasers to the Eligible Purchasers of the Securities.
(m) The Issuers agree to comply with all of their the terms and conditions of the Registration Rights Agreement, and all agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter representation letters of the Issuers to DTC relating to the approval of the Original Notes Securities by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-book entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly Company and severally, the Guarantors covenant and agree with the Initial Purchasers as follows:
(a) To furnish such information as may be required and otherwise to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in qualifying the Notes and Exchange Notes for offering and sale under the securities or blue sky laws of such jurisdictions as the Initial Purchasers may request and to maintain such qualification in effect so long as required by such laws for the Exempt Resales, provided that neither the Company nor any Guarantor shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in any jurisdiction in which it is not then so subject (except service of process with respect to the offering and sale of the Notes and Exchange Notes); and to promptly advise the Initial Purchasers of the receipt by the Company or any Guarantor of any notification with respect to the suspension of the qualification of the Notes or Exchange Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many such number of copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably requestrequest for purposes contemplated by the Act. Holdings, the The Company and the Co-Issuer consent 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 the Initial Purchasers in connection with Exempt ResalesResales that are in compliance with Section 4(B) of this Agreement.
(bc) Not From and after the Closing Date, for so long as any of the Notes remain outstanding, to make any changes deliver without charge to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than Initial Purchasers, promptly upon their becoming available, copies of (i) changes all reports and other communications (financial or otherwise) that the Company shall mail or otherwise make available to reflect pricing information with respect to the Notes and its securityholders, (ii) all reports or financial statements furnished to or filed by the Company and each of the Guarantors with the Commission or any national securities exchange and (iii) such other changes information as the Initial Purchasers may reasonably request regarding the Company or the Subsidiaries.
(d) To advise the Initial Purchasers promptly of the happening of any event known to which the Representative shall have consented. Not to amend or supplement the Offering Memorandum Company prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event shall occur thatwhich, in the judgment of the Company or Company, would require the making of any change in the judgment of counsel to Preliminary Offering Memorandum or the Initial PurchasersOffering Memorandum then being used, makes any so that the Preliminary Offering Memorandum or the Offering Memorandum would not include an untrue statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions omit to or changes in the Offering Memorandum in order state a material fact necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are made, not misleading, and, during such time, to prepare and furnish, at the Company's expense, to the Initial Purchasers promptly such amendments or if it is necessary supplements to amend the Preliminary Offering Memorandum or supplement the Offering Memorandum as may be necessary to comply with applicable law, reflect any such change and to furnish the Initial Purchasers a copy of such proposed amendment or supplement. The Company shall promptly notify prepare, upon the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum so that (i) the statements may be necessary or advisable in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply connection with applicable law.
(d) To qualify or register the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise furnish to the Initial Purchasers promptly andas early as practicable prior to the time of purchase, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if requested by the Initial Purchasers, to confirm such advice in writingany, of the issuance Company and the Subsidiaries which have been read by any securities commission the Company's independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(c) of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timethis Agreement.
(f) To apply the net proceeds from the sale of the Notes in the manner set forth under the caption "Use of Proceeds" in the Offering Memorandum.
(g) 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, disbursements fees and taxes (including fees, expenses other than any transfer taxes and other than fees and disbursements of counsel to the IssuersInitial Purchasers, except as may be required by clause (iv) reasonably incurred and stamp, documentary or similar taxes below) incident to and in connection with: (i) the preparation, printing printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) preparation and delivery of the Note Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial Purchasers, (viv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda memorandum and the fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesNotes and Exchange Notes (including, without limitation, printing and engraving thereof), (viiivii) the application for quotation eligibility of the Notes for trading in The Portal Market the Private Offerings, Resales and Trading through Automated Linkages ("PortalPORTAL") market of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing application fees and expenses, (ixviii) the approval of the Notes and Exchange Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (xix) the rating of the Notes and Exchange Notes by rating agencies, (xix) the fees and expenses of the Trustee and its counsel and (xiixi) the performance by the Issuers Company and the Guarantors of their other obligations under the Note Operative Documents. In addition, if the transactions contemplated by this Agreement are including, but not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchaserslimited to, the Issuers shall pay the fees, disbursements and expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing Company's counsel and initial borrowings under the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsaccountants."
(h) To use their reasonable best efforts Not to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries 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 Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(mi) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(nj) To comply with all of their its agreements set forth in the Registration Rights Agreement.
(o) To comply with Agreement and all of their obligations agreements set forth in the representations letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(pk) To use their reasonable its best efforts to effect the inclusion eligibility of the Original Notes for trading in Portalthe PORTAL market and to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rl) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum, and any amendments and or supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not As promptly as practicable following the execution and delivery of this Agreement and in any event not later than the second business day following the date hereof, to make any changes prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consentedPricing Supplement. Not to amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. Not to amend or supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplement.
(c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Final Offering Memorandum, as then amended or supplemented, untrue or that requires the making of any additions to or changes in the Final Offering Memorandum in order to make the statements in the Final Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Final Offering Memorandum so that (i) the statements in the Final Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the Closing Date and at the time that the Offering Memorandum is delivered to prospective Eligible Purchasersof sale of Securities, not be misleading and (ii) the Final Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions as the Initial Purchasers may request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andpromptly, and if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum Memorandum, the Pricing Supplement and the Final Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial Purchasers, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes Securities in The Portal Market ("“Portal"”) of the National Association of Securities Dealers, Inc. ("“NASD"”), including, but not limited to, all listing fees and expenses, (ixvii) the approval inclusion of the Notes by Securities in the book-entry system of The Depository Trust Company ("“DTC") for "book-entry" transfer”), (xviii) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuers Company of their its other obligations under the Note Documents. In addition; provided, if notwithstanding the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasersforegoing, the Issuers shall pay the fees, first $110,000 of expenses in connection with chartered aircraft and disbursements of counsel to the Initial PurchasersPurchasers shall pay all such expenses in excess of such amount.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Notes in substantially the manner described in the Offering Memorandum Pricing Disclosure Package under the caption "“Use of proceeds."”
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it prior them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other its affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their its other 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 Co-Issuer make makes no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "“restricted securities" ” within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply cooperate with all of their obligations set forth in and assist the representations letter of the Issuers to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use their best efforts Initial Purchasers to obtain approval of the Original Notes by DTC Securities to be eligible for "book-entry" transferclearance and settlement through DTC.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering MemorandumPricing Disclosure Package, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to, and not to permit any of their its affiliates or anyone acting on their its or their affiliates its affiliates’ behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum Memorandum, the Pricing Supplement, press releases pursuant to Rule 135 under the Act and the Final Offering Memorandum.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they it or any of their its affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) During the period from the date hereof through and including the date that is 30 days after the date hereof, without the prior written consent of this Section 4the Representative, solely with respect offer, sell, contract to sell or otherwise dispose of any person who is selling an ownership interest in debt securities issued or guaranteed by the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement or any Subsidiary and having a tenor of their rights under the UPA) to cause such person to comply with such covenantsmore than one year.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and Issuers agree with the Initial Purchasers as follows:
(a) To furnish Until the completion of the distribution of the Securities by the Initial Purchasers and those persons identified by the Initial to Eligible Purchasers, without charge, with as many copies the Issuers will advise each of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. Holdingspromptly and, if requested by any of them, will confirm such advice in writing, within the period of time referred to in paragraph (e) below, of any change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and the Co-Issuer consent to the use Subsidiaries (as defined herein), taken as a whole, or of the Preliminary Offering Memorandum and happening of any event or the Offering Memorandum, and existence of any amendments and supplements thereto required pursuant condition which requires any amendment or supplement to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement so that the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall (x) will not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, contain any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any untrue statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue omit to state a material fact required to be stated therein or that requires the making of any additions to or changes in the Offering Memorandum in order necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are were made, not misleading, misleading or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)y) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(b) The Issuers will furnish to the Initial Purchasers, without charge, as of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as it may then be amended or supplemented as they may reasonably request.
(c) The Issuers will not make any amendment or supplement to the Preliminary Offering Memorandum or to the Offering Memorandum of which each of the Initial Purchasers shall not previously have been advised or to which any of them shall reasonably object after being so advised.
(d) To qualify Prior to the execution and delivery of this Agreement, the Issuers have delivered or register will deliver to the Original Notes 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 Issuers consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the 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 Issuers. The Issuers consent to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the
(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 another shall exist that in the judgment of the Issuers or in the reasonable opinion of the Initial Purchasers should be set forth in the Offering Memorandum so that the Offering Memorandum (x) will not contain any untrue statement of a material fact required to be stated thereunder necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (y) will comply with applicable law, the Issuers will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers and dealers that number of copies thereof as they shall reasonably request.
(f) The Issuers will cooperate with the Initial Purchasers and with the Initial Purchasers' counsel in connection with the 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 will file such consents to continue service of process or other documents necessary or appropriate in order to effect such qualification qualification; provided that in effect so long as required for no event shall any of the Exempt Resales. Notwithstanding the foregoing, no Issuer shall Issuers be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to execute a general consent take any action which would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or subject itself to taxation in excess sale of a nominal dollar amount the Securities, in any such jurisdiction where it is they are not then now so subject.
(eg) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of So long as any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities lawsSecurities are outstanding, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(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, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) will furnish to the Initial Purchasers relating thereto)(i) as soon as available, (vi) the furnishing a copy of such copies each report of the Preliminary Offering Memorandum Issuers mailed to stockholders or filed with the Securities and Exchange Commission (the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("PortalCommission") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xiiii) the performance by from time to time such other information concerning the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of as the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial PurchasersPurchasers may reasonably request.
(gh) To use The Issuers will apply the net proceeds from the sale of the Original Notes, Securities substantially in accordance with the Equity Financing and initial borrowings description set forth under the New Credit Agreement in substantially the manner described "Use of Proceeds" in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesMemorandum.
(i) Not toWithout the prior consent of the Initial Purchasers, and prior to the expiration of 180 days after the date of the Offering Memorandum the Company will not to permit any of their subsidiaries tooffer, sell, offer for sale contract to sell or solicit offers to buy otherwise dispose of any security (as defined in the Act) that would be integrated with the sale fixed income obligation having a maturity of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasersmore than one year.
(j) Not Except as stated in this Agreement and in the Offering Memorandum, the Issuers have not taken, nor will they take, directly or indirectly, any action designed to permit any Issuer to, and or that might reasonably be expected to cause their other affiliates (or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. Except as defined in Rule 144 under permitted by the Act) , the Issuers will not distribute any offering material in connection with the Exempt Resales. The Issuers will not solicit any offers to resell any of buy and will not offer to sell the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.Securities
(k) Not to engage, not to allow any of The Issuers will use their subsidiaries to engage, and commercially reasonable best efforts to cause their other affiliates and any person acting the Securities to be eligible for trading on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original NotesThe PORTAL Market.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes remain Securities are outstanding and are "restricted securitiesRestricted 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 will furnish to make available 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 by to be delivered pursuant to Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes permit compliance with Rule 144A in connection with any sale resales of such Notes the Securities.
(m) The Issuers have complied and (ii) any prospective purchaser will comply with all provisions of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documentsFlorida Statutes Section 517.075 relating to issuers doing business with Cuba.
(n) To The Issuers agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale by the Issuers to the Initial Purchasers or by the Initial Purchasers to the Eligible Purchasers of the Securities.
(o) The Issuers agree to comply with all of their the terms and conditions of the Registration Rights Agreement, and all agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter representation letters of the Issuers to DTC relating to the approval of the Original Notes Securities by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-book entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) The Issuers agree that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date effective date of any offering material in connection with the offer and sale registration of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings Securities pursuant to the UPARegistration Rights Agreement, or at such earlier time as may be so required, the Issuers Indenture shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights qualified under the UPATrust Indenture Act of 1939 (the "1939 Act") and will cause to cause such person to comply with such covenantsbe entered into any necessary supplemental indentures in connection therewith.
Appears in 1 contract
Samples: Purchase Agreement (KCS Energy Inc)
Agreements of the Issuers. The Issuers, Issuers jointly and severally, covenant and agree with the Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request. Holdings, the Company and the Co-Issuer The Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not to make any changes or additions to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (i) changes to reflect pricing information with respect to the Notes Securities and (ii) such other changes and additions as to which the Representative Initial Purchaser shall have consented. Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use use, and shall not have objected to such amendment or supplementsupplement in writing.
(c) If, prior to the time that the Initial Purchasers have Purchaser has completed their its distribution of the Original NotesSecurities, any event shall occur that, in the judgment of the Company Issuers or in the judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, 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, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with all applicable lawlaws, the Company Issuers shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, willwill not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To qualify or register the Original Notes Securities under the securities laws of such jurisdictions in the United States and Canada as the Initial Purchasers Purchaser may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly andPurchaser promptly, and if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes Securities under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Securities under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminatedconsummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: with (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers and the Initial Purchaser in connection with any meetings with prospective investors in the Original NotesSecurities, (iii) the preparation, notarization (if necessary) and delivery of the Note Transaction Documents and all other agreements, memoranda, correspondence and documents prepared and delivered by or on behalf of the Issuers in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Securities by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, Issuers to the Initial PurchasersPurchaser, (v) the qualification or registration of the Notes Securities for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes Securities in The Portal Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixvii) the approval inclusion of the Notes by Securities in the book-entry system of The Depository Trust Company ("DTC") for "book-entry" transfer), (xviii) the rating of the Notes Securities by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by each of the Issuers of their its other obligations under the Note Transaction Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original Notes, the Equity Financing and initial borrowings under the New Credit Agreement Securities in substantially the manner described in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesSecurities.
(i) Not to, and not to permit any of their subsidiaries Subsidiary (as defined below) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes Securities in a manner that would require the registration under the Act of the sale of the Original Notes Securities to the Initial Purchasers Purchaser or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to to, resell any of the Original Notes Securities that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes Securities in the United States prior to the effectiveness of a registration statement with respect to the Original NotesStates.
(l) Not to engage, not to allow any of their subsidiaries Subsidiary to engage, and to cause their other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Company and the Co-Issuer Issuers make no covenant) not to engage, in any directed selling effort with respect to the Original NotesSecurities, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the Notes Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes Securities in connection with any sale of such Notes Securities and (ii) any prospective purchaser of such Notes Securities from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(n) To comply with all of their agreements set forth in obligations under the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in under the representations letter of the Issuers representations to DTC relating to the approval of the Original Notes Securities by DTC for "book-entry" transfer and to use their reasonable best efforts to obtain approval of the Original Notes Securities by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received prepared by Holdingsthe Issuers, a copy of any regularly prepared internal financial statements of any of the Company Issuers and its subsidiaries the Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails Issuers mail or otherwise make available to its security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(rq) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf of any of them to (other than the Initial Purchasers Purchaser and their its affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes Securities other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(ts) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Company of the completion of the resale distribution of the NotesSecurities, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have has a beneficial interest any Notes; and none of the Companyinterest, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, actual or apparent, apparent active trading in, or of raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and Securities.
(t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they To use their reasonable best efforts to effect the inclusion of the Securities in Portal.
(u) During the period from the date hereof through and including through June 9, 2004, without the enforcement prior written consent of their rights under the UPAInitial Purchaser, offer, sell, contract to sell or otherwise dispose of any debt securities or debt facilities issued or guaranteed by any member of the LNM Group except (i) Ispat Sidbec, Inc. shall be permitted to cause such person pursue and consummate the reorganization of its existing credit facility and (ii) the two existing credit facility syndications of the LNM Group which have been previously disclosed to comply with such covenantsthe Initial Purchaser may be pursued and consummated.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the Initial Purchasers Underwriters as follows:
(a) To furnish such information as may be required and otherwise to cooperate in qualifying the Initial Purchasers Notes for offering and those persons identified sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect so long as required for the distribution of the Notes; provided that no Issuer shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Notes); and to promptly advise you of the receipt by any Issuer of any notification with respect to the Initial Purchaserssuspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. Notwithstanding the foregoing, without chargeno Issuer shall be required to qualify the offer and sale of the Notes or the Guarantees in any state if it shall be determined by counsel to the Underwriters that such qualification is preempted by reason of Section 18 of the Act.
(b) To make immediately available to the Underwriters in New York City, with and from time to time to furnish to the Underwriters, as many copies of the Preliminary Offering Memorandum and Prospectus (or of the Offering Memorandum, and Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto, thereto after the effective date of the Registration Statement) as the Initial Purchasers Underwriters may reasonably request. Holdings, request for the Company and purposes contemplated by the CoAct; if any Underwriter is required to deliver a prospectus after the nine-Issuer consent month period referred to the use in Section 10(a)(3) of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers Act in connection with Exempt Resalesthe sale of the Notes, the Issuers will prepare promptly upon request such amendment or amendments to the Registration Statement and such prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(bc) Not To advise you promptly and (if requested by you) to make any changes to the information contained confirm such advice in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than writing, (i) changes to reflect pricing information with respect when any post-effective amendment to the Notes Registration Statement becomes effective and (ii) such other changes as 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 Representative shall have consented. Not Company agrees to file in a timely manner under such Rules).
(d) To advise you promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or 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 make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Offering Memorandum prior Registration Statement or Prospectus including by filing any documents that would be incorporated therein by reference and to the Closing Date unless the Initial Purchasers shall previously have been advised of file no such proposed amendment or supplement at least two business days prior to the proposed use and which you shall not have objected to such amendment or supplementreasonably object in writing.
(ce) IfSubject to Section 4(n) hereof, prior to file promptly all reports and any definitive proxy or information statement required to be filed by the Issuers with the Commission in order to comply with the Exchange Act subsequent to the time that the Initial Purchasers have completed their distribution date of the Original Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes, and to promptly notify you of such filing.
(f) If necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act.
(g) To furnish to you promptly for a period of three years from the date of this Agreement (i) copies of any reports or other communications required to be furnished to holders of the Notes pursuant to the Indenture, (ii) copies of documents or reports filed with any national securities exchange on which any class of securities of any Issuer is listed, without exhibits unless requested, and (iii) such other information as you may reasonably request regarding any Issuer.
(h) To advise the Underwriters promptly of the happening of any event shall occur that, in within the judgment of the Company or in the judgment of counsel time during which a Prospectus relating to the Initial Purchasers, makes any statement of a material fact in Notes is required to be delivered under the Offering Memorandum, as then amended or supplemented, untrue or that requires Act which could require the making of any additions to or changes change in the Offering Memorandum Prospectus then being used, or in order the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are made, not misleading, and, during such time, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or if it is supplements to such Prospectus as may be necessary to amend or supplement the Offering Memorandum reflect any such change and to comply with applicable law, the Company shall promptly notify the Initial Purchasers furnish you a copy of such event and (subject to Section 4(b)) prepare an appropriate proposed amendment or supplement to before filing any such amendment or supplement with the Offering Memorandum so that Commission.
(i) the statements in the Offering MemorandumTo make generally available to its security holders, as amended or supplementedand to deliver to you, will, in the light an earnings statement of the circumstances at Company (which will satisfy the time that provisions of Section 11(a) of the Offering Memorandum 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 delivered to prospective Eligible Purchasersreasonably practicable after the termination of such twelve-month period but not later than May 15, not be misleading and (ii) the Offering Memorandum will comply with applicable law2004.
(dj) To qualify or register furnish to you three copies of the Original Notes under Registration Statement, as initially filed with the securities laws Commission, and of such jurisdictions as the Initial Purchasers may request all amendments thereto (including all exhibits thereto and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectdocuments incorporated by reference therein).
(ek) To advise furnish to you as early as practicable prior to the Initial Purchasers promptly andClosing Date, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if requested any, of Parent and the Subsidiaries (as hereinafter defined) which have been read by the Initial PurchasersCompany’s independent certified public accountants, as stated in their letter to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers shall use their reasonable best efforts be furnished pursuant to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuers shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timeSection 7(b) hereof.
(fl) Whether or not To apply the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to net proceeds from the sale of the Notes in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(m) To pay all costs, expenses, fees and taxes (other than any transfer taxes and fees, and disbursements of counsel for the Underwriters except as set forth under Section 6 hereof and (iii), (iv) and (vi) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including feescosts of mailing and shipment), expenses (ii) the registration, issue, sale and delivery of the Notes, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Notes for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Notes on any securities exchange or qualification of the Notes for quotation on the Nasdaq Stock Market and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Notes by the Corporate Financing Department of the National Association of Securities Dealers, Inc. (the “NASD”), including the legal fees and filing fees and other disbursements of counsel to the Issuers) reasonably incurred and stampUnderwriters, documentary or similar taxes incident to and in connection with: (ivii) the preparation, printing costs and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers relating to presentations or meetings undertaken in connection with any meetings with the marketing of the offer and sale of the Notes to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the Original Notesroad show presentations, travel, lodging and other expenses incurred by the officers of the Issuers, any such consultants, and the cost of any aircraft chartered in connection with the road show, (iiiviii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt ResalesAgreement, (ivix) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the GuaranteeGuarantees, respectively, to the Initial PurchasersUnderwriters, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viix) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixxi) the approval of the Notes by The the Depository Trust Company ("“DTC"”) for "book-entry" entry transfer, (xxii) the rating of the Notes by rating agencies, (xixiii) the fees and expenses of the Trustee and its counsel counsel, and (xiixiv) the performance by of the Issuers of their Issuers’ other obligations under the Note Documents. In addition, if the transactions contemplated by Except as provided in this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial PurchasersSection 4(m) and Section 6, the Issuers shall pay not be responsible for your expenses, including the feesexpenses of your counsel, expenses and disbursements transfer taxes on resale of counsel to any of the Initial PurchasersNotes.
(gn) To use furnish to you, before filing with the proceeds from Commission subsequent to the sale effective date of the Original NotesRegistration Statement and during the period referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(o) If, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment thereto to be declared effective before the offering of the Notes may commence, the Equity Financing Issuers will endeavor to cause such post-effective amendment to become effective as soon as possible and initial borrowings under will advise you promptly and, if requested by you, will confirm such advice in writing, when the New Credit Agreement in substantially the manner described in the Offering Memorandum under the caption "Use of proceedsRegistration Statement or such post-effective amendment has become effective."
(hp) Until 90 days following the Closing Date, not, without the prior written consent of UBS Warburg LLC, to sell or contract to sell or announce the offering of any debt securities of any of the Issuers with characteristics and terms similar to those of the Notes.
(q) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement the Note Documents by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) 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 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 upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documents.
(nr) To comply with in all of their agreements set forth in the Registration Rights Agreement.
(o) To comply material respects with all of their obligations set forth in the representations letter of the Issuers Company to DTC relating to the approval of the Original Notes by DTC for "“book-entry" ” transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "“book-entry" ” transfer.
(p) To use their reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been received by Holdings, a copy of any regularly prepared internal financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Agreements of the Issuers. The Issuers, jointly and severally, covenant and Issuers agree with the Initial Purchasers Purchaser as follows:
(a) To furnish Until the Initial Purchasers and those persons identified completion of the distribution of the Securities by the Initial Purchaser to Eligible Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as Issuers will advise the Initial Purchasers may reasonably request. HoldingsPurchaser promptly and, if requested by it, will confirm such advice in writing, of any change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and the Co-Issuer consent to the use Subsidiaries (as defined herein), taken as a whole, or of the Preliminary Offering Memorandum and happening of any event or the Offering Memorandum, and existence of any amendments and supplements thereto required pursuant condition which requires any amendment or supplement to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes to the information contained in the Offering Memorandum from the corresponding information contained in the Preliminary Offering Memorandum other than (ias then amended or supplemented) changes to reflect pricing information with respect to the Notes and (ii) such other changes as to which the Representative shall have consented. Not to amend or supplement so that the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use and shall (x) will not have objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, contain any event shall occur that, in the judgment of the Company or in the judgment of counsel to the Initial Purchasers, makes any untrue statement of a material fact in the Offering Memorandum, as then amended or supplemented, untrue omit to state a material fact required to be stated therein or that requires the making of any additions to or changes in the Offering Memorandum in order necessary to make the statements in the Offering Memorandum, as then amended or supplementedtherein, in the light of the circumstances under which they are were made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)y) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(b) The Issuers will furnish to the Initial Purchaser, without charge, such number of copies of the Offering Memorandum, as may then be amended or supplemented, as it may reasonably request.
(c) The Issuers will not make any amendment or supplement to the Preliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which it shall object after being so advised.
(d) To qualify Prior to the execution and delivery of this Agreement, the Issuers have delivered or register will deliver to the Original Notes Initial Purchaser, without charge, in such reasonable quantities as the Initial Purchaser shall have requested or may hereafter request, copies of the Preliminary Offering Memorandum. The Issuers consent to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchaser and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Issuers. The Issuers consent to the use of the Offering Memorandum (and of any amendment or supplement thereto prepared in accordance with Section 4(c)) in accordance with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchaser and by all dealers to whom Securities may be sold, in connection with the offering and sale of the Securities.
(e) If, at any time prior to completion of the distribution of the Securities by the Initial Purchaser to Eligible Purchasers, any event shall occur or condition shall exist that in the judgment of the Issuers or in the opinion of the Initial Purchaser requires any amendment or supplement to the Offering 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 the light of the circumstances under which they were made, not misleading, or (y) will comply with applicable law, the Issuers 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 Purchaser and dealers that number of copies thereof as they shall reasonably request.
(f) The Issuers will cooperate with the Initial Purchaser and with its counsel in connection with the qualification of the Securities for offering and sale by the Initial Pur- chaser 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 continue service of process or other documents necessary or appropriate in order to effect such qualification qualification; provided that in effect so long as required for no event shall any of the Exempt Resales. Notwithstanding the foregoing, no Issuer shall Issuers be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to execute a take any action which would subject it to general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subject.
(eg) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of So long as any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuers 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 Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities lawsSecurities are outstanding, the Issuers shall use their reasonable best efforts will furnish to obtain the withdrawal Initial Purchaser (i) as soon as available, a copy of each report of the Issuers mailed to stockholders or lifting of filed with the Securities and Exchange Commission (the "Commission"), and (ii) from time to time such order at other information concerning the earliest possible timeIssuers as the Initial Purchaser may reasonably request.
(fh) Whether or not The Issuers will apply the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuers) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery by the Company and the Co-Issuer and the Guarantors of the Original Notes and the Guarantee, respectively, to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuers of their other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by either of the Initial Purchasers, the Issuers shall pay the fees, expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the net proceeds from the sale of the Original Notes, Securities to be sold by them hereunder in accordance with the Equity Financing and initial borrowings description set forth under the New Credit Agreement in substantially the manner described "Use of Proceeds" in the Offering Memorandum under the caption "Use of proceeds."
(h) To use their reasonable best efforts to do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Original NotesMemorandum.
(i) Not toExcept as stated in this Agreement and in the Offering Memorandum, and the Issuers have not taken, nor will they take, directly or indirectly, any action designed to permit any or that might reasonably be expected to cause or result in stabilization or manipulation of their subsidiaries to, sell, offer for the price of the Securities to facilitate the sale or resale of the Securities. Except as permitted by the Act, the Issuers will not distribute any offering material in connection with the Exempt Resales. The Issuers will not solicit any offers to buy any security (as defined in and will not offer to sell the Act) that would be integrated with the sale Securities by means of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other affiliates (as defined in Rule 144 under the Act) not to resell any of the Original Notes that have been reacquired by any of them, and that constitute "restricted securities" under Rule 144, other than to an Issuer or an affiliate of any Issuer for a period of two years after the Closing Date.
(k) Not to engage, not to allow any of their subsidiaries to engage, and to cause their other 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 Co-Issuer make no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D D) or by means of any directed selling efforts (as defined under Regulation S and the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Original NotesCommission's releases related thereto).
(lj) Not to engage, not to allow any of The Issuers will use their subsidiaries to engage, and best efforts to cause their other affiliates and any person acting the Securities to be eligible for trading on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Company and the Co-Issuer make no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.The PORTAL Market.
(mk) From and after the Closing Date, for so long as any of the Notes remain 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 the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company will furnish to make available 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 by to be delivered pursuant to Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes permit compliance with Rule 144A in connection with any sale resales of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Company and the Co-Issuer will pay the expenses of preparing, printing and distributing such documentsSecurities.
(nl) To The Issuers agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale by the Issuers to the Initial Purchaser or by the Initial Purchaser to the Eligible Purchasers of the Securities.
(m) The Issuers agree to comply with all of their the terms and conditions of the Registration Rights Agreement, and all agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in the representations letter representation letters of the Issuers to DTC relating to the approval of the Original Notes Securities by DTC for "book-entry" transfer and to use their best efforts to obtain approval of the Original Notes by DTC for "book-book entry" transfer.
(pn) To use their reasonable best efforts The Issuers agree that prior to effect the inclusion any registration of the Original Notes Securities pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and will cause to be entered into any necessary supplemental indentures in Portalconnection therewith.
(qo) The Issuers shall not, and shall not permit any of their respective affiliates to, resell any Securities that have been acquired by any of them.
(p) Prior to the Closing Date, to the Issuers will furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been received prepared by Holdingsthe Company, a copy of any regularly prepared internal unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the period covered by the most recent consolidated financial statements of the Company appearing in the Offering Memorandum, (ii) copies of all other reports and other communications (financial or otherwise) that the Company mails or otherwise make available to security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or anyone acting on their or their affiliates behalf to (other than the Initial Purchasers and their affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, not to, and not to permit any of their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates have a beneficial interest any Notes; and none of the Company, the Co-Issuer nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Notes. Notwithstanding anything to the contrary in the covenants contained in paragraphs, (j), (k), (l), (r) and (t) of this Section 4, solely with respect to any person who is selling an ownership interest in the Company to Holdings pursuant to the UPA, the Issuers shall be deemed to have complied with such covenants with respect to their affiliates if they use their reasonable best efforts (including through the enforcement of their rights under the UPA) to cause such person to comply with such covenants.
Appears in 1 contract
Samples: Purchase Agreement (Walbro Corp)
