Certain Agreements of the Issuer and each Guarantor. The Issuer and each Guarantor agree with the several Initial Purchasers that: (a) The Issuer and the Guarantors will advise the Representative promptly of any proposal to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum and will not effect such amendment or supplement without the Representative’ consent, which consent shall not be unreasonably delayed or withheld. If, at any time prior to the completion of the resale of the Offered Securities by the Initial Purchasers, any event occurs as a result of which any document included in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or if it is necessary at any time to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuer and the Guarantors will promptly notify the Representative of such event and will promptly prepare, at their own expense, an amendment or supplement which will correct such statement or omission. Neither the Representative’ consent to, nor the Initial Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Issuer by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described in Section 8(b) hereof. (b) The Issuer and the Guarantors will furnish to the Initial Purchasers copies of the Preliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative reasonably requests. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer and the Guarantors will promptly furnish or cause to be furnished to the Representative (and, upon request, to each of the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) to the extent necessary to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Issuer will pay the expenses of printing and distributing all such documents. (c) The Issuer and the Guarantors will use their commercially reasonable efforts, in cooperation with the Initial Purchasers, to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such states in the United States as the Representative reasonably designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself to taxation in any such state. (d) During the period of one year after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities. (e) During the period of one year after the Closing Date, the Issuer will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them, unless (i) such Offered Securities are sold pursuant to a registration statement which is effective under the Securities Act or (ii) such Offered Securities are sold accompanied by an opinion of counsel that the buyer of such Offered Securities is acquiring freely tradable securities. (f) During the period of one year after the Closing Date, the Issuer will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act. (g) The Issuer and the Guarantors will pay all expenses incidental to the performance of their respective obligations under this Agreement, the Indenture, the Registration Rights Agreement and the other Operative Documents including (i) the fees and expenses of the Trustee and its professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities, (iii) the cost of any advertising approved by the Issuer in connection with the issue of the Offered Securities, (iv) any reasonable expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Initial Purchasers designate and the printing of memoranda relating thereto, (v) any fees charged by investment rating agencies for the rating of the Offered Securities, (vi) expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers, and (vii) any fees and expenses of the Trustee, the Notes Collateral Agent and any agent of the Trustee and/or Notes Collateral Agent and the fees and disbursements of counsel for the Trustee and/or Notes Collateral Agent in connection with the Indenture, the Security Documents, the Intercreditor Agreement, the Offered Securities and the Guarantees; (viii) the fees and expenses incurred by the Issuer or any Guarantor in connection with perfection of security interest in and liens on the Collateral set forth in the Security Documents; and (ix) the reasonable and documented fees and expenses of Cxxxxxx Xxxxxx & Mxxxx LLP, as counsel for the Initial Purchasers, incurred in connection with perfection of security interests in and liens on the Collateral set forth in the Security Documents. It is understood, however, that, except for as provided in Section 8 and Section 10, the Initial Purchasers will pay all of the fees, costs, expenses and disbursements of their counsel in connection with the issuance and sale of the Offered Securities. (h) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Offered Securities, neither the Issuer nor the Guarantors, nor any of their affiliates has or will (other than the Initial Purchasers or their affiliates, as to which the Issuer makes no agreement), either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither they nor any of their affiliates (other than the Initial Purchasers or their affiliates as to which the Issuer makes no agreement) will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities. (i) For a period of 90 days after the date of this Agreement, the Issuer will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, without the written consent of the Representative, any United States dollar-denominated debt securities (which does not include borrowings under the ABL Facility (as defined in the Preliminary Offering Memorandum) and the Exchange Securities) issued or guaranteed by the Issuer and having a maturity of more than one year from the date of issue. The Issuer will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities. (j) If less than all of the outstanding 11.75% Notes are tendered in the Tender Offer on or prior to the Early Tender Date, on the Closing Date, the Issuer shall (i) issue, or cause to be issued, an irrevocable notice (or notices) of the Redemption to the trustee of the 11.75% Notes and the holders of the 11.75% Notes and (ii) irrevocably deposit, or cause to be irrevocably deposited, with the trustee of the 11.75% Notes, a portion of the net proceeds from the offering and sale of the Offered Securities in an amount sufficient to redeem (i) the lesser of (x) $70,000,000 aggregate principal amount of 11.75% Notes and (y) the aggregate principal amount of any 11.75% Notes that were not tendered on or prior to the Early Tender Date, in either case at a redemption price equal to 103% of such principal amount, plus accrued and unpaid interest, if any, to the First Redemption Date and (ii) an aggregate principal amount of 11.75% Notes, if any, equal to (x) the aggregate principal amount of 11.75% Notes that were not tendered on or prior to the Early Tender Date, less (y) $70,000,000, at a redemption price equal to 105.875% of such amount, plus accrued and unpaid interest to the Final Redemption Date. The Issuer hereby covenants and agrees not to take, or cause to be taken, any further action with respect to such net proceeds after such deposit with the trustee for the 11.75% Notes, except (i) in respect of the Tender Offer, to pay for the purchase on the Final Settlement Date of 11.75% Notes tendered on or prior to the Expiration Date, (ii) in respect of the Redemption or (iii) as may be required by applicable law.
Appears in 1 contract
Certain Agreements of the Issuer and each Guarantor. The Issuer and each Guarantor agree with the several Initial Purchasers that:
(a) The Issuer and the Guarantors will advise the Representative Initial Purchasers promptly of any proposal to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum and will not effect such amendment or supplement without the RepresentativeInitial Purchasers’ consent, which consent shall not be unreasonably delayed or withheld. If, at any time prior to the completion of the resale of the Offered Securities by the Initial Purchasers, any event occurs as a result of which any document included in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or if it is necessary at any time to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuer and the Guarantors will promptly notify the Representative Initial Purchasers of such event and will promptly prepare, at their own expense, an amendment or supplement which will correct such statement or omission. Neither the RepresentativeInitial Purchasers’ consent to, nor the Initial Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Issuer by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described in Section 8(b) hereof.
(b) The Issuer and the Guarantors will furnish to the Initial Purchasers copies of the Preliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative Initial Purchasers reasonably requestsrequest. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer and the Guarantors will promptly furnish or cause to be furnished to the Representative (and, upon request, to each of the other Initial Purchasers) Purchasers and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) to the extent necessary to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Issuer will pay the expenses of printing and distributing all such documents.
(c) The Issuer and the Guarantors will use their commercially reasonable efforts, in cooperation with the Initial Purchasers, to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such states in the United States as the Representative Initial Purchasers reasonably designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself to taxation in any such state.
(d) During the period of one year after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of one year after the Closing Date, the Issuer will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them, unless (i) such Offered Securities are sold pursuant to a registration statement which is effective under the Securities Act or (ii) such Offered Securities are sold accompanied by an opinion of counsel that the buyer of such Offered Securities is acquiring freely tradable securities.
(f) During the period of one year after the Closing Date, the Issuer will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Issuer and the Guarantors will pay all expenses incidental to the performance of their respective obligations under this Agreement, the Indenture, the Registration Rights Agreement and the other Operative Documents including (i) the fees and expenses of the Trustee and its professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities, (iii) the cost of any advertising approved by the Issuer in connection with the issue of the Offered Securities, (iv) any reasonable expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Initial Purchasers designate and the printing of memoranda relating thereto, (v) any fees charged by investment rating agencies for the rating of the Offered Securities, (vi) expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers, and (vii) any fees and expenses of the Trustee, the Notes Collateral Agent Trustee and any agent of the Trustee and/or Notes Collateral Agent and the fees and disbursements of counsel for the Trustee and/or Notes Collateral Agent in connection with the Indenture, the Security Documents, the Intercreditor Agreement, the Offered Securities and the Guarantees; (viii) the fees and expenses incurred by the Issuer or any Guarantor in connection with perfection of security interest in and liens on the Collateral set forth in the Security Documents; and (ix) the reasonable and documented fees and expenses of Cxxxxxx Xxxxxx & Mxxxx LLP, as counsel for the Initial Purchasers, incurred in connection with perfection of security interests in and liens on the Collateral set forth in the Security Documents. It is understood, however, that, except for as provided in Section 8 and Section 10, the Initial Purchasers will pay all of the fees, costs, expenses and disbursements of their counsel in connection with the issuance and sale of the Offered Securities.
(h) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Offered Securities, neither the Issuer nor the Guarantors, nor any of their affiliates has or will (other than the Initial Purchasers or their affiliates, as to which the Issuer makes no agreement), either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither they nor any of their affiliates (other than the Initial Purchasers or their affiliates as to which the Issuer makes no agreement) will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(i) For a period of 90 days after the date of this Agreement, the Issuer will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, without the written consent of the RepresentativeUBS Securities LLC, any United States dollar-denominated debt securities (which does not include borrowings under the ABL Facility (as defined in the Preliminary Offering Memorandum) and the Exchange Securities) issued or guaranteed by the Issuer and having a maturity of more than one year from the date of issue. The Issuer will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(j) If less than all of the outstanding 11.75% Notes are tendered in the Tender Offer on or prior to the Early Tender Date, on On the Closing Date, the Issuer shall (i) issue, or cause to be issued, an irrevocable notice (or notices) of the Redemption to the trustee of the 11.75% Senior Subordinated Notes and the holders of the 11.75% Senior Subordinated Notes and (ii) irrevocably deposit, or cause to be irrevocably deposited, with the trustee of the 11.75% Senior Subordinated Notes, a portion of the net proceeds from the offering and sale of the Offered Securities and, if necessary, cash on hand, in an amount sufficient to redeem (i) the lesser of (x) $70,000,000 aggregate principal amount of 11.75% Notes and (y) the aggregate principal amount of any 11.75% and all outstanding Senior Subordinated Notes that were not tendered on or prior to the Early Tender Date, in either case at a redemption price equal to 103106.5625% of such principal amount, plus accrued and unpaid interest, if any, to the First Redemption Date and (ii) an aggregate principal amount of 11.75% Notes, if any, equal to (x) the aggregate principal amount of 11.75% Notes that were not tendered on or prior to the Early Tender Date, less (y) $70,000,000, at a redemption price equal to 105.875% of such amount, plus accrued and unpaid interest to the Final Redemption Date. The Issuer hereby covenants and agrees not to take, or cause to be taken, any further action with respect to such net proceeds after such deposit with the trustee for the 11.75% Senior Subordinated Notes, except (i) in respect of the Tender Offer, to pay for the purchase on the Final Settlement Date of 11.75% Notes tendered on or prior to the Expiration Date, (ii) in respect of the Redemption or (iii) as may be required by applicable law.
Appears in 1 contract
Certain Agreements of the Issuer and each Guarantor. The Issuer and each Guarantor agree with the several Initial Purchasers that:
(a) The Issuer and the Guarantors will advise the Representative Credit Suisse promptly of any proposal to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum Circular and will not effect such amendment or supplement supplementation without the Representative’ Credit Suisse’s consent, which consent shall not be unreasonably delayed or withheld. If, at any time prior to the completion of the resale of the Offered Securities by the Initial Purchasers, any event occurs as a result of which any document included in the Preliminary Offering Memorandum or Final Offering MemorandumCircular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or if it is necessary at any time to amend or supplement the Preliminary Offering Memorandum or Final Offering MemorandumCircular, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuer and the Guarantors will promptly notify the Representative Credit Suisse of such event and will promptly prepare, at their own expense, an amendment or supplement which will correct such statement or omission. Neither the Representative’ Credit Suisse’s consent to, nor the Initial Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or Final Offering MemorandumCircular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Issuer by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described in Section 8(b) hereof.
(b) The Issuer and the Guarantors will furnish to the Initial Purchasers copies of the Preliminary Offering MemorandumCircular, each other document comprising a part of the General Disclosure Package, the Final Offering MemorandumCircular, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative Credit Suisse reasonably requests. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer and the Guarantors will promptly furnish or cause to be furnished to the Representative Credit Suisse (and, upon request, to each of the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) to the extent necessary to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Issuer will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(c) The Issuer and the Guarantors will use their commercially reasonable efforts, in cooperation with the Initial Purchasers, to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such states in the United States as the Representative Credit Suisse reasonably designate designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself to taxation in any such state.
(d) [intentionally omitted]
(e) During the period of one year after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(ef) During the period of one year after the Closing Date, the Issuer will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them, unless (i) such Offered Securities are sold pursuant to a registration statement which is effective under the Securities Act or (ii) such Offered Securities are sold accompanied by an opinion of counsel that the buyer of such Offered Securities is acquiring freely tradable securities.
(fg) During the period of one year after the Closing Date, the Issuer will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(gh) The Issuer and the Guarantors will pay all expenses incidental to the performance of their respective obligations under this Agreement, the Purchase Agreement Counterparts, the Indenture, the Supplemental Indenture and the Registration Rights Agreement and the other Operative Documents including (i) the fees and expenses of the Trustee Trustee, and its professional advisers, ; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering MemorandumCircular, any other documents comprising any part of the General Disclosure Package, the Final Offering MemorandumCircular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities, ; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The NASDAQ Stock Market, Inc. and any expenses incidental thereto; (iv) the cost of any advertising approved by the Issuer in connection with the issue of the Offered Securities, ; (ivv) any reasonable expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Initial Purchasers designate and the printing of memoranda relating thereto, ; (vvi) any fees charged by investment rating agencies for the rating of the Offered Securities, ; and (vivii) expenses incurred in distributing the Preliminary Offering MemorandumCircular, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers, and (vii) any fees and expenses of the Trustee, the Notes Collateral Agent and any agent of the Trustee and/or Notes Collateral Agent and the fees and disbursements of counsel for the Trustee and/or Notes Collateral Agent in connection with the Indenture, the Security Documents, the Intercreditor Agreement, the Offered Securities and the Guarantees; (viii) the fees and expenses incurred by the Issuer or any Guarantor in connection with perfection of security interest in and liens on the Collateral set forth in the Security Documents; and (ix) the reasonable and documented fees and expenses of Cxxxxxx Xxxxxx & Mxxxx LLP, as counsel for the Initial Purchasers, incurred in connection with perfection of security interests in and liens on the Collateral set forth in the Security Documents. It is understood, however, that, except for as provided in Section 8 and Section 10, the Initial Purchasers will pay all of the fees, costs, expenses and disbursements of their counsel in connection with the issuance and sale of the Offered Securities.
(hi) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Offered Securities, neither the Issuer nor the Guarantors, nor any of their affiliates has or will (other than the Initial Purchasers or their affiliates, affiliates as to which the Issuer makes no agreement), ) either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither they nor any of their affiliates (other than the Initial Purchasers or their affiliates as to which the Issuer makes no agreement) will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(ij) For a period of 90 days after the date of this Agreement, the Issuer will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, without the written consent of the RepresentativeRepresentatives, any United States dollar-denominated debt securities (which does not include borrowings under the ABL New Credit Facility (as defined in the Preliminary Offering Memorandum) and or evidence of such borrowings or the Exchange Securities) issued or guaranteed by the Issuer and having a maturity of more than one year from the date of issue. The Issuer will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(jk) If less than all of the outstanding 11.75% Notes are tendered in the Tender Offer on or prior The Issuer will use its commercially reasonable efforts to the Early Tender Date, on the Closing Date, the Issuer shall (i) issue, or cause to be issued, an irrevocable notice (or notices) of the Redemption to the trustee of the 11.75% Notes and the holders of the 11.75% Notes and (ii) irrevocably deposit, or cause to be irrevocably deposited, with the trustee of the 11.75% Notes, a portion of the net proceeds from the offering and sale of the Offered Securities to become qualified for trading in an amount sufficient to redeem (i) the lesser of (x) $70,000,000 aggregate principal amount of 11.75% Notes and (y) the aggregate principal amount of any 11.75% Notes that were not tendered on or prior to the Early Tender Date, in either case at a redemption price equal to 103% of such principal amount, plus accrued and unpaid interest, if any, to the First Redemption Date and (ii) an aggregate principal amount of 11.75% Notes, if any, equal to (x) the aggregate principal amount of 11.75% Notes that were not tendered on or prior to the Early Tender Date, less (y) $70,000,000, at a redemption price equal to 105.875% of such amount, plus accrued and unpaid interest to the Final Redemption Date. The Issuer hereby covenants and agrees not to take, or cause to be taken, any further action with respect to such net proceeds after such deposit with the trustee for the 11.75% Notes, except (i) in respect of the Tender Offer, to pay for the purchase on the Final Settlement Date of 11.75% Notes tendered on or prior to the Expiration Date, (ii) in respect of the Redemption or (iii) as may be required by applicable lawPORTAL.
Appears in 1 contract
Certain Agreements of the Issuer and each Guarantor. The Issuer and each Guarantor agree with the several Initial Purchasers that:
(a) The Issuer and the Guarantors will advise the Representative UBS promptly of any proposal to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum and will not effect such amendment or supplement supplementation without the Representative’ UBS’s consent, which consent shall not be unreasonably delayed or withheld. If, at any time prior to the completion of the resale of the Offered Securities by the Initial Purchasers, any event occurs as a result of which any document included in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or if it is necessary at any time to amend or supplement the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuer and the Guarantors will promptly notify the Representative UBS of such event and will promptly prepare, at their own expense, an amendment or supplement which will correct such statement or omission. Neither the Representative’ UBS’s consent to, nor the Initial Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Issuer by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described in Section 8(b) hereof.
(b) The Issuer and the Guarantors will furnish to the Initial Purchasers copies of the Preliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative UBS reasonably requests. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer and the Guarantors will promptly furnish or cause to be furnished to the Representative UBS (and, upon request, to each of the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) to the extent necessary to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Issuer will pay the expenses of printing and distributing all such documents.
(c) The Issuer and the Guarantors will use their commercially reasonable efforts, in cooperation with the Initial Purchasers, to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such states in the United States as the Representative UBS reasonably designate designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself to taxation in any such state.
(d) During the period of one year after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of one year after the Closing Date, the Issuer will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them, unless (i) such Offered Securities are sold pursuant to a registration statement which is effective under the Securities Act or (ii) such Offered Securities are sold accompanied by an opinion of counsel that the buyer of such Offered Securities is acquiring freely tradable securities.
(f) During the period of one year after the Closing Date, the Issuer will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Issuer and the Guarantors will pay all expenses incidental to the performance of their respective obligations under this Agreement, the Indenture, the Registration Rights Agreement and the other Operative Documents including (i) the fees and expenses of the Trustee and its professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities, (iii) the cost of any advertising approved by the Issuer in connection with the issue of the Offered Securities, (iv) any reasonable expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Initial Purchasers designate and the printing of memoranda relating thereto, (v) any fees charged by investment rating agencies for the rating of the Offered Securities, Securities and (vi) expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers, and (vii) any fees and expenses of the Trustee, the Notes Collateral Agent and any agent of the Trustee and/or Notes Collateral Agent and the fees and disbursements of counsel for the Trustee and/or Notes Collateral Agent in connection with the Indenture, the Security Documents, the Intercreditor Agreement, the Offered Securities and the Guarantees; (viii) the fees and expenses incurred by the Issuer or any Guarantor in connection with perfection of security interest in and liens on the Collateral set forth in the Security Documents; and (ix) the reasonable and documented fees and expenses of Cxxxxxx Xxxxxx & Mxxxx LLP, as counsel for the Initial Purchasers, incurred in connection with perfection of security interests in and liens on the Collateral set forth in the Security Documents. It is understood, however, that, except for as provided in Section 8 and Section 10, the Initial Purchasers will pay all of the fees, costs, expenses and disbursements of their counsel in connection with the issuance and sale of the Offered Securities.
(h) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Offered Securities, neither the Issuer nor the Guarantors, nor any of their affiliates has or will (other than the Initial Purchasers or their affiliates, as to which the Issuer makes no agreement), either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither they nor any of their affiliates (other than the Initial Purchasers or their affiliates as to which the Issuer makes no agreement) will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(i) For a period of 90 days after the date of this Agreement, the Issuer will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, without the written consent of the RepresentativeUBS, any United States dollar-denominated debt securities (which does not include borrowings under the ABL Facility (as defined in the Preliminary Offering Memorandum) and the Exchange Securities) issued or guaranteed by the Issuer and having a maturity of more than one year from the date of issue. The Issuer will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(j) If less than all of the outstanding 11.75% Notes are tendered in the Tender Offer on or prior to the Early Tender Date, on On the Closing Date, the Issuer shall (i) issue, or cause to be issued, an irrevocable notice (or notices) of the Redemption to the trustee of the 11.759% Notes and the holders of the 11.759% Notes and (ii) irrevocably deposit, or cause to be irrevocably deposited, with the trustee of the 11.759% Notes, a portion of the net proceeds from the offering and sale of the Offered Securities in an amount sufficient to redeem (i) the lesser of (x) approximately $70,000,000 141.2 million aggregate principal amount of 11.759% Notes and (y) the aggregate principal amount of any 11.75% Notes that were not tendered on or prior to the Early Tender Date, in either case at a redemption price equal to 103100% of such the principal amount, amount thereof plus accrued and unpaid interest, if any, to the First Redemption Date and (ii) an aggregate principal amount of 11.75% Notes, if any, equal to (x) the aggregate principal amount of 11.75% Notes that were not tendered on or prior to the Early Tender Date, less (y) $70,000,000, at a redemption price equal to 105.875% of such amount, plus accrued and unpaid interest to the Final Redemption Date. The Issuer hereby covenants and agrees not to take, or cause to be taken, any further action with respect to such net proceeds after such deposit with the trustee for the 11.759% Notes, except (i) in respect of the Tender Offer, to pay for the purchase on the Final Settlement Date of 11.75% Notes tendered on or prior to the Expiration Date, (ii) in respect of the Redemption or (iii) as may be required by applicable law.
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