Certain Agreements of the Issuers and the Guarantors. The Issuers and each Guarantor, jointly and severally, agree with the several Initial Purchasers that: (a) The Issuers will advise the Representative as soon as reasonably practicable of any proposal to amend or supplement the Preliminary or Final Offering Memorandum, or filing with the Commission any document that will be incorporated by reference therein, and will not effect such amendment, supplementation or filing without the Representative’s consent, which consent will not be unreasonably withheld or delayed. If, at any time prior to the completion of the resale of the Notes by each Initial Purchaser, there occurs an event or development as a result of which the Preliminary or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material 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 the light of the circumstances prevailing at such time, not misleading, or if it is necessary at any such time to amend or supplement the Preliminary or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuers as soon as reasonably practicable will notify the Representative of such event and promptly will prepare, at their own expense, an amendment or supplement, or file with the Commission a document that will be incorporated by reference therein, which will correct such statement or omission or effect such compliance. Neither the Representative’s consent to, nor the Initial Purchasers’ delivery to investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6. (b) The Issuers and each of 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 Holdings or the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Issuers and the Guarantors will promptly furnish or cause to be furnished upon request of the Representative or holders or prospective purchasers of the Notes, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Issuers will pay the expenses of printing and distributing to the Initial Purchasers all such documents. (c) The Issuers will arrange for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representative designates and will continue such qualifications in effect so long as required for the resale of the Notes by each Initial Purchaser, provided that each Issuer will not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. (d) During the period of one year hereafter, each Issuer will furnish upon request to the Initial Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, if one is prepared; and each Issuer will furnish to the Initial Purchasers such other information concerning such Issuer as the Representative may reasonably request; provided that such information shall be deemed to have been furnished to the Initial Purchasers if it has been filed by the Company or Holdings on the Commission’s Electronic Data Gathering, Analysis and Retrieval system. (e) During the period of one year after the Closing Date, the Issuers will, upon request, furnish to the Initial Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes. (f) The Issuers will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them unless such Notes are sold in a transaction registered under the Securities Act. (g) Each 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. (h) The Issuers and the Guarantors will, jointly and severally, pay all expenses incidental to the performance of their obligations under the Transaction Documents, including (i) the fees and expenses of the Trustee and any paying agent and their respective professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes and any taxes payable in that connection, and the preparation and printing of the Notes, the Transaction Documents, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all exhibits, amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes; (iii) the fees and expenses of the Issuers’ and the Guarantors’ counsel and independent accountants; (iv) all expenses and fees incurred in connection with the approval of the Notes for book-entry transfer by DTC; (v) the cost of any advertising approved by the Issuers in connection with the issue of the Notes; (vi) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification and determination of eligibility for investment of the Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representative designates and the printing of memoranda relating thereto; (vii) for any fees charged by investment rating agencies for the rating of the Notes; (viii) for 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 exhibits, amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers; and (ix) the expenses incurred by the Issuers in connection with any “road show” presentation to potential investors. The Issuers will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all travel expenses of the Initial Purchasers and the Issuers’ respective officers and employees and any other expenses of the Initial Purchasers and the Issuers in connection with attending or hosting meetings with prospective purchasers of the Notes from the Initial Purchasers. It is understood, however, that except as provided in this Section 4 and Sections 7 and 9, the Initial Purchasers will pay all of their respective costs and expenses, including, without limitation, fees and disbursements of their counsel, transfer taxes payable on the resale of the Notes by them and any advertising expenses created by each Initial Purchaser in connection with the issuance and resales of the Notes. (i) In connection with the offering, until the Initial Purchasers shall have notified the Issuers of the completion of the resale of the Notes, neither the Issuers nor any of their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which the Issuers or any of their respective affiliates has a beneficial interest any such Notes or knowingly attempt to induce any person to purchase any such Notes; and neither the Issuers nor any of their respective affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, such Notes. (j) For a period of 60 days after the Closing Date, the Issuers and each of the Guarantors will not offer or sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any debt securities issued or guaranteed by Holdings, the Issuers or the Guarantors and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representative. The Issuers and the Guarantors 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(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes. (k) The Issuers will reasonably assist each Initial Purchaser in arranging for the Notes to be eligible for clearance and settlement through DTC. (l) The Issuers will notify the Representative as soon as reasonably practicable, and confirm the notice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the Notes as a result of which any of the General Disclosure Package or the Final Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such General Disclosure Package or the Final Offering Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt by the Issuers of any notice with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuers will use their reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or suspending any such qualification of the Notes and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (m) The Company will apply the net proceeds from the sale of the Notes as described in the General Disclosure Package and the Final Offering Memorandum under the heading “Use of proceeds”. (n) None of the Issuers nor any of the Guarantors will 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 Notes. (o) None of the Issuers nor any of their respective affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Notes in a manner that would require registration of the Notes under the Securities Act. (p) None of the Issuers or any of their respective affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
Appears in 1 contract
Certain Agreements of the Issuers and the Guarantors. The Each of the Issuers and each Guarantor, jointly and severally, agree the Guarantors agrees with the several Initial Purchasers that:
(a) The Issuers will advise the Representative as soon as reasonably practicable furnish a copy to Xxxxxxx Xxxxx Xxxxxx Inc. promptly of any proposal to amend or supplement the Preliminary or Final Offering Memorandum, or filing with the Commission any document that will be incorporated by reference therein, Document and will not effect such amendment, amendment or supplementation or filing without to which Xxxxxxx Xxxxx Xxxxxx Inc. shall reasonably object by notice to the Representative’s consent, which consent will not be unreasonably withheld or delayedIssuers after a reasonable period to review. If, at any time prior to the completion of the resale of the Notes Offered Securities by each Initial Purchaserthe Purchasers, there any event occurs an event or development as a result of which the Preliminary Offering Document as then amended or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material included or supplemented 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 the light of the circumstances prevailing at such timeunder which they were made, not misleading, or if it is necessary at any such time to amend or supplement the Preliminary or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuers as soon as reasonably practicable promptly will notify the Representative Xxxxxxx Xxxxx Xxxxxx Inc. of such event and promptly will prepare, at their own expense, an amendment or supplement, or file with the Commission a document that will be incorporated by reference therein, supplement which will correct such statement or omission or effect such complianceomission. Neither the Representative’s Xxxxxxx Xxxxx Xxxxxx Inc.'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 6.
(b) The Issuers and each of the Guarantors will furnish to the Initial Purchasers Xxxxxxx Xxxxx Xxxxxx Inc. copies of the Preliminary Offering Memorandum, each other document comprising a part of the General Disclosure Packageany preliminary offering memorandum, the Final Offering Memorandum, Document and all amendments and supplements to such documents and each item of Supplemental Marketing Materialdocuments, in each case as soon as available and in such quantities as the Representative Xxxxxxx Xxxxx Xxxxxx Inc. reasonably requests, and the Issuers will furnish to Xxxxxxx Xxxxx Xxxxxx Inc. on the date hereof three copies of the Offering Document signed by a duly authorized officer of each of the Issuers, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when Holdings or the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Issuers and the Guarantors Company will promptly furnish or cause to be furnished to Xxxxxxx Xxxxx Xxxxxx Inc. (and, upon request, to each of the other Purchasers) and, upon request of the Representative or holders or and prospective purchasers of the NotesOffered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the NotesOffered Securities. The Issuers will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representative Xxxxxxx Xxxxx Xxxxxx Inc. designates and will continue such qualifications in effect so long as required for the resale of the Notes Offered Securities by each Initial Purchaserthe Purchasers, provided provided, however, that each Issuer neither of the Issuers will not be required to (i) qualify as a foreign corporation or other entity or as to file a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subjectjurisdiction.
(d) During the period of one year hereafter, each Issuer will furnish upon request to the Initial Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, if one is prepared; and each Issuer will furnish to the Initial Purchasers such other information concerning such Issuer as the Representative may reasonably request; provided that such information shall be deemed to have been furnished to the Initial Purchasers if it has been filed by the Company or Holdings on the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
(e) During the period of one year two years after the Closing Date, the Issuers will, upon request, furnish to Xxxxxxx Xxxxx Xxxxxx Inc., each of the Initial other Purchasers and any holder of Notes Offered Securities a copy of the restrictions on transfer applicable to the NotesOffered Securities.
(fe) The During the period of two years after the Closing Date, the Issuers will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes Offered Securities that have been reacquired by any of them unless such Notes are sold them, except for Offered Securities purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act.
(gf) Each Issuer During the period of two years after the Closing Date, neither of the Issuers will not be or become 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.
(hg) The Issuers and the Guarantors will, jointly and severally, will pay all expenses incidental to the performance of their obligations under this Agreement, the Transaction DocumentsIndenture, the Security Documents and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and any paying agent the Collateral Agent and their respective professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes and any taxes payable Offered Securities and, as applicable, the Exchange Securities (as defined in that connectionthe Registration Rights Agreement), and the preparation and printing of the Notesthis Agreement, the Transaction DocumentsRegistration Rights Agreement, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure PackageOffered Securities, the Final Indenture, the Offering Memorandum, all exhibits, Document and amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the NotesOffered Securities and as applicable, the Exchange Securities; (iii) the fees cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PORTAL(SM) Market ("PORTAL") and any expenses of the Issuers’ and the Guarantors’ counsel and independent accountantsincidental thereto; (iv) all expenses and fees incurred in connection with the approval of the Notes for book-entry transfer by DTC; (v) the cost of any advertising approved by the Issuers in connection with the issue of the Notes; Offered Securities (viv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification and determination of eligibility for investment of the Notes Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representative Xxxxxxx Xxxxx Xxxxxx Inc. designates and the printing of memoranda relating thereto; , (viivi) for any fees charged by investment rating agencies for the rating of the Notes; Securities or the Exchange Securities, (vii) the costs of preparing the Security Documents and perfecting the security interests in the Collateral, and (viii) for expenses incurred in distributing preliminary offering memoranda and the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum Document (including any exhibits, amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers; and (ix) the expenses incurred by the Issuers in connection with any “road show” presentation to potential investors. The Issuers will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all travel expenses of the Initial Purchasers and the Issuers’ respective ' officers and employees and any other expenses of the Initial Purchasers and the Issuers in connection with attending or hosting meetings with prospective purchasers of the Notes Offered Securities from the Initial Purchasers. It is understood; provided, however, that except as provided in this Section 4 and Sections 7 and 9, the Initial Purchasers will pay all of their respective costs and expenses, including, without limitation, fees and disbursements of their counsel, transfer taxes payable on the resale cost of the Notes rental of the aircraft used by them the Purchasers and any advertising expenses created by each Initial Purchaser the Issuers' officers and employees in connection with their attendance at such meetings shall be shared equally between the issuance Issuers and resales the Purchasers with the Issuers paying half of such cost and the Purchasers paying the other half of such cost. If this Agreement is terminated pursuant to Section 8 of this Agreement by reason of the Notesdefault of one or more of the Purchasers, the Issuers and the Guarantors shall not be obligated to reimburse any defaulting Purchaser on account of such expenses.
(ih) In connection with the offering, until the Initial Purchasers Xxxxxxx Xxxxx Xxxxxx Inc. shall have notified the Issuers and the other Purchasers of the completion of the resale of the NotesOffered Securities, neither of the Issuers nor any of their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which the Issuers they or any of their respective affiliates has a beneficial interest any such Notes Offered Securities or knowingly attempt to induce any person to purchase any such NotesOffered Securities; and neither of the Issuers nor any of their respective affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, such Notesthe Offered Securities.
(ji) For a period of 60 180 days after the Closing Datedate of the initial offering of the Offered Securities by the Purchasers, the Issuers and each of the Guarantors will not offer or offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or guaranteed by Holdings, the Issuers Company or the Guarantors any of its subsidiaries and having a maturity of more than one year from the date of issue, issue in the United States in a public offering or publicly disclose the intention to make any such offer, sale, pledge, disposition or filinga Rule 144A offering, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc.; provided, however, that the Representative. The foregoing shall not apply to the exchange notes to be issued in exchange for the 12% Senior Secured Notes due 2008 of the Issuers pursuant to the Registration Rights Agreement dated May 6, 2002 among the Issuers, the Guarantors and the Guarantors Initial Purchasers identified therein, debt securities which are convertible into equity securities or are equity linked debt securities or equity securities. Neither the Company nor any of its subsidiaries 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(a)(24(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the NotesOffered Securities.
(j) The Issuers will use the net proceeds received by them from the sale of the Offered Securities in the manner specified in the Offering Memorandum under the heading "Use of Proceeds."
(k) The Issuers will reasonably assist each Initial Purchaser use their best efforts to have the Offered Securities admitted to trading in arranging for the Notes to be eligible for clearance and settlement through DTCPORTAL.
(l) The Issuers will notify deliver to the Representative trustee under the 2008 Notes Indenture and the Collateral Agent an officer's certificate pursuant to Section 8.19 of the Intercreditor Agreement and Section 10.10 of the 2008 Notes Indenture designating the Securities and the guarantees in respect thereof as soon as reasonably practicable, and confirm the notice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the Notes as a result of which any of the General Disclosure Package or the Final Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such General Disclosure Package or the Final Offering Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt by the Issuers of any notice with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuers will use their reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or suspending any such qualification of the Notes and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(m) The Company will apply the net proceeds from the sale of the Notes as described in the General Disclosure Package and the Final Offering Memorandum under the heading “Use of proceeds”.
(n) None of the Issuers nor any of the Guarantors will 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 Notes.
(o) None of the Issuers nor any of their respective affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security "First-Lien Credit Facilities" (as defined in the Securities Act), that is or will be integrated with the sale Intercreditor Agreement) for purposes of the Intercreditor Agreement and (ii) "First-Lien Credit Facilities" (as defined in the 2008 Notes Indenture) and any obligation in a manner that would require registration of the Notes under the Securities Act.
(p) None of the Issuers or any of their respective affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) respect of the Securities Act or and the guarantees in respect thereof as "Credit Agreement Obligations" (iias defined in the indenture for the 2008 Notes Indenture) engage in any directed selling efforts within for purposes of the meaning of Regulation S, and all such persons will comply with indenture for the offering restrictions requirement of Regulation S.2008 Notes Indenture.
Appears in 1 contract
Certain Agreements of the Issuers and the Guarantors. The Each of the Issuers and each Guarantor, jointly and severally, agree the Guarantors agrees with the several Initial Purchasers that:
(a) The Issuers will advise the Representative as soon as reasonably practicable furnish a copy to CSFBC promptly of any proposal to amend or supplement the Preliminary or Final Offering Memorandum, or filing with the Commission any document that will be incorporated by reference therein, Document and will not effect such amendment, amendment or supplementation or filing without to which CSFB shall reasonably object by notice to the Representative’s consent, which consent will not be unreasonably withheld or delayedIssuers after a reasonable period to review. If, at any time prior to the completion of the resale of the Notes Offered Securities by each Initial Purchaserthe Purchasers, there any event occurs an event or development as a result of which the Preliminary Offering Document as then amended or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material included or supplemented 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 the light of the circumstances prevailing at such timeunder which they were made, not misleading, or if it is necessary at any such time to amend or supplement the Preliminary or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material to comply with any applicable law, the Issuers as soon as reasonably practicable promptly will notify the Representative CSFBC of such event and promptly will prepare, at their own expense, an amendment or supplement, or file with the Commission a document that will be incorporated by reference therein, supplement which will correct such statement or omission or effect such complianceomission. Neither the Representative’s CSFBC'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 6.
(b) The Issuers and each of the Guarantors will furnish to the Initial Purchasers CSFBC copies of the Preliminary Offering Memorandum, each other document comprising a part of the General Disclosure Packageany preliminary offering circular, the Final Offering Memorandum, Document and all amendments and supplements to such documents and each item of Supplemental Marketing Materialdocuments, in each case as soon as available and in such quantities as the Representative CSFBC reasonably requests, and the Issuers will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized officer of each of the Issuers, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when Holdings or the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Issuers and the Guarantors Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each of the other Purchasers) and, upon request of the Representative or holders or and prospective purchasers of the NotesOffered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the NotesOffered Securities. The Issuers will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representative CSFBC designates and will continue such qualifications in effect so long as required for the resale of the Notes Offered Securities by each Initial Purchaserthe Purchasers, provided that each Issuer neither of the Issuers will not be required to (i) qualify as a foreign corporation or other entity or as to file a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subjectjurisdiction.
(d) During the period of one year hereafter, each Issuer will furnish upon request to the Initial Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, if one is prepared; and each Issuer will furnish to the Initial Purchasers such other information concerning such Issuer as the Representative may reasonably request; provided that such information shall be deemed to have been furnished to the Initial Purchasers if it has been filed by the Company or Holdings on the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
(e) During the period of one year two years after the Closing Date, the Issuers will, upon request, furnish to CSFBC, each of the Initial other Purchasers and any holder of Notes Offered Securities a copy of the restrictions on transfer applicable to the NotesOffered Securities.
(fe) The During the period of two years after the Closing Date, the Issuers will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes Offered Securities that have been reacquired by any of them unless such Notes are sold them, except for Offered Securities purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act.
(gf) Each Issuer During the period of two years after the Closing Date, neither of the Issuers will not be or become 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.
(hg) The Issuers and the Guarantors will, jointly and severally, will pay all expenses incidental to the performance of their obligations under this Agreement, the Transaction DocumentsIndenture, the Security Documents and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and any paying agent the Collateral Agent and their respective professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes and any taxes payable Offered Securities and, as applicable, the Exchange Securities (as defined in that connectionthe Registration Rights Agreement), and the preparation and printing of the Notesthis Agreement, the Transaction DocumentsRegistration Rights Agreement, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure PackageOffered Securities, the Final Indenture, the Offering Memorandum, all exhibits, Document and amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the NotesOffered Securities and as applicable, the Exchange Securities; (iii) the fees cost of listing the Offered Securities and qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses of the Issuers’ and the Guarantors’ counsel and independent accountantsincidental thereto; (iv) all expenses and fees incurred in connection with the approval of the Notes for book-entry transfer by DTC; (v) the cost of any advertising approved by the Issuers in connection with the issue of the Notes; Offered Securities (viv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification and determination of eligibility for investment of the Notes Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representative CSFBC designates and the printing of memoranda relating thereto; , (viivi) for any fees charged by investment rating agencies for the rating of the Notes; Securities or the Exchange Securities, (vii) the costs of preparing the Security Documents and perfecting the security interests in the Collateral, and (viii) for expenses incurred in distributing preliminary offering circulars and the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum Document (including any exhibits, amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers; and (ix) the expenses incurred by the Issuers in connection with any “road show” presentation to potential investors. The Issuers will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all travel expenses of the Initial Purchasers and the Issuers’ respective ' officers and employees and any other expenses of the Initial Purchasers and the Issuers in connection with attending or hosting meetings with prospective purchasers of the Notes Offered Securities from the Initial Purchasers. It is understood; provided, however, that except as provided in this Section 4 and Sections 7 and 9, the Initial Purchasers will pay all of their respective costs and expenses, including, without limitation, fees and disbursements of their counsel, transfer taxes payable on the resale cost of the Notes rental of the aircraft used by them the Purchasers and any advertising expenses created by each Initial Purchaser the Issuers' officers and employees in connection with their attendance at such meetings shall be shared equally between the issuance Issuers and resales the Purchasers with the Issuers paying half of such cost and the Purchasers paying the other half of such cost. If this Agreement is terminated pursuant to Section 8 of this Agreement by reason of the Notesdefault of one or more of the Purchasers, the Issuers and the Guarantors shall not be obligated to reimburse any defaulting Purchaser on account of such expenses.
(ih) In connection with the offering, until the Initial Purchasers CSFBC shall have notified the Issuers and the other Purchasers of the completion of the resale of the NotesOffered Securities, neither of the Issuers nor any of their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which the Issuers they or any of their respective affiliates has a beneficial interest any such Notes Offered Securities or knowingly attempt to induce any person to purchase any such NotesOffered Securities; and neither of the Issuers nor any of their respective affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, such Notesthe Offered Securities.
(ji) For a period of 60 180 days after the Closing Datedate of the initial offering of the Offered Securities by the Purchasers, the Issuers and each of the Guarantors will not offer or offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or guaranteed by Holdings, the Issuers Company or the Guarantors any of its subsidiaries and having a maturity of more than one year from the date of issue, issue in the United States in a public offering or publicly disclose the intention to make any such offer, sale, pledge, disposition or filinga Rule 144A offering, without the prior written consent of CSFBC; provided, however, that the Representativeforegoing shall not apply to debt securities which are convertible into equity securities or are equity linked debt securities or equity securities. The Issuers and Neither the Guarantors Company nor any of its subsidiaries 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(a)(24(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the NotesOffered Securities.
(j) The Issuers will use the net proceeds received by them from the sale of the Offered Securities in the manner specified in the Offering Circular under the heading "Use of Proceeds."
(k) The Issuers will reasonably assist each Initial Purchaser in arranging for the Notes to be eligible for clearance and settlement through DTC.
(l) The Issuers will notify the Representative as soon as reasonably practicable, and confirm the notice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the Notes as a result of which any of the General Disclosure Package or the Final Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such General Disclosure Package or the Final Offering Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt by the Issuers of any notice with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuers will use their reasonable best efforts to prevent have the issuance of any such order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or suspending any such qualification of the Notes and, if any such order is issued, will obtain as soon as possible the withdrawal thereofOffered Securities admitted to trading in PORTAL.
(m) The Company will apply the net proceeds from the sale of the Notes as described in the General Disclosure Package and the Final Offering Memorandum under the heading “Use of proceeds”.
(n) None of the Issuers nor any of the Guarantors will 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 Notes.
(o) None of the Issuers nor any of their respective affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Notes in a manner that would require registration of the Notes under the Securities Act.
(p) None of the Issuers or any of their respective affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
Appears in 1 contract
Certain Agreements of the Issuers and the Guarantors. The Issuers Each Issuer and each Guarantor, jointly and severally, agree agrees with the several Initial Purchasers that:
(a) The Issuers will advise the Representative as soon as reasonably practicable CSFB promptly of any proposal to amend or supplement the Preliminary or Final Offering Memorandum, or filing with the Commission any document that will be incorporated by reference therein, Circular and will not effect such amendment, amendment or supplementation or filing without the Representative’s consent, CSFB's consent (which consent will not be unreasonably withheld or delayedwithheld). If, at any time prior to the completion of the resale of the Notes Offered Securities by each Initial Purchaserthe Purchasers, there any event occurs an event or development as a result of which the Preliminary Offering Circular as then amended or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material included or supplemented 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 the light of the circumstances prevailing at such timeunder which they were made, not misleading, or if it is necessary at any such time to amend or supplement the Preliminary or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material Circular to comply with any applicable law, the Issuers as soon as reasonably practicable promptly will notify the Representative CSFB of such event and promptly will prepare, at their own expense, an amendment or supplement, or file with the Commission a document that will be incorporated by reference therein, supplement which will correct such statement or omission or effect such compliance. Neither the Representative’s CSFB'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 6.
(b) The Issuers and each of the Guarantors will furnish to the Initial Purchasers CSFB copies of the Preliminary Offering MemorandumCircular, each other document comprising a part of the General Disclosure Package, the Final Offering Memorandum, Circular and all amendments and supplements to such documents and each item of Supplemental Marketing Materialdocuments, in each case as soon as available and in such quantities as the Representative CSFB reasonably requests. At any time when Holdings the Offered Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act and the Issuers or the Company any Guarantor is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Issuers and or the Guarantors Guarantors, as applicable, will promptly furnish or cause to be furnished to CSFB (and, upon request, to each of the other Purchasers) and, upon request of the Representative or holders or and prospective purchasers of the NotesOffered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the NotesOffered Securities. The Issuers will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representative CSFB reasonably designates and will continue such qualifications in effect so long as reasonably required for the initial resale of the Notes Offered Securities by each Initial Purchaser, the Purchasers; provided that each Issuer the Issuers and the Guarantors will not be required to (i) qualify as a foreign corporation or other entity or as to file a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such state or other jurisdiction or (iii) to subject itself themselves to taxation in respect of doing business in any such state or other jurisdiction if it is in which they are not otherwise so subject.
(d) During the period of one year hereafter, each Issuer will furnish upon request prior to the Initial effectiveness of the Exchange Offer Registration Statement or a Shelf Registration Statement, as the case may be, the Parent will provide or cause to be provided to CSFB and, upon request, to each of the other Purchasers, information substantially equivalent to the information that would be contained in the reports that would be filed by Parent with the Commission as soon as practicable provided in the Indenture if Parent were then subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, in each case within 15 days after the end of each fiscal year, a copy of its annual respective date on which such report to shareholders for such year, if one is prepared; and each Issuer will furnish to the Initial Purchasers such other information concerning such Issuer as the Representative may reasonably request; provided that such information shall be deemed to would have been furnished required to the Initial Purchasers if it has been filed by the Company or Holdings on the Commission’s Electronic Data Gathering, Analysis and Retrieval systembe so filed.
(e) During the period of one year two years after the Closing Date, the Issuers and the Guarantors will, upon request, furnish make available to CSFB and each of the Initial other Purchasers and any holder of Notes Offered Securities a copy of the restrictions on transfer applicable to the NotesOffered Securities.
(f) The During the period of two years after the Closing Date, the Issuers will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes Offered Securities that have been reacquired by any of them unless such Notes are sold them, except for Offered Securities purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act.
(g) Each Issuer During the period of two years after the Closing Date, neither the Issuers nor any Guarantor will not be or become 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.
(h) The Issuers and the Guarantors will, jointly and severally, will pay all reasonable expenses (together with VAT where applicable) incidental to the performance of their and the Guarantors' obligations under this Agreement, the Transaction DocumentsRegistration Rights Agreement and the Indenture, including (i) the fees and expenses of the Trustee and any paying agent and their respective its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes and any taxes payable Offered Securities and, as applicable, the Exchange Securities (as defined in that connectionthe Registration Rights Agreement), and the preparation and printing of the Notesthis Agreement, the Transaction DocumentsRegistration Rights Agreement, the Offered Securities, the Exchange Securities, the Indenture, the Preliminary Offering Memorandum, any other documents comprising any part of Circular and the General Disclosure Package, the Final Offering Memorandum, Circular and all exhibits, amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the NotesOffered Securities or the Exchange Securities; (iii) the fees cost of qualifying the Offered Securities for trading in The Portal Market (PORTAL) and any expenses of the Issuers’ and the Guarantors’ counsel and independent accountantsincidental thereto; (iv) all expenses and fees incurred in connection with the approval of the Notes for book-entry transfer by DTC; (v) the cost of any advertising approved by the Issuers in connection with the issue of the NotesOffered Securities; (viv) for any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification and determination of eligibility for investment of the Notes Offered Securities or the Exchange Securities, for sale under the laws of such jurisdictions in the United States and Canada as the Representative CSFB reasonably designates and the printing of memoranda relating thereto; (viivi) for any fees charged by investment rating agencies for the rating of the Notes; Offered Securities or the Exchange Securities, and (viiivii) for expenses incurred in distributing preliminary offering circulars and the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum Circular (including any exhibits, amendments and supplements thereto) and any Supplemental Marketing Material to the Initial Purchasers; provided, however, that except as provided in the next sentence of this Section 5(h) and (ix) Section 9, the Purchasers shall pay their own costs and expenses, including the costs and expenses of their counsel, any taxes on the Offered Securities which they may sell and the expenses incurred of advertising and offering of the Offered Securities made by the Issuers in connection with any “road show” presentation to potential investorsPurchasers. The Issuers will also pay or reimburse the Initial Purchasers (to the extent incurred by themthem prior to the Closing Date) for all reasonable travel expenses of the Initial Purchasers and the Issuers’ respective ' officers and employees and any other reasonable expenses of the Initial Purchasers and the Issuers in connection with attending or hosting meetings with prospective purchasers of the Notes Offered Securities from the Initial Purchasers. It is understood, however, that except as provided in this Section 4 and Sections 7 and 9, the Initial Purchasers will pay all of their respective costs and expenses, including, without limitation, fees and disbursements of their counsel, transfer taxes payable on the resale of the Notes by them and any advertising expenses created by each Initial Purchaser in connection with the issuance and resales of the Notes.
(i) In connection with the initial offering, until the Initial Purchasers earlier of (i) such time as CSFB shall have notified the Issuers and the other Purchasers of the completion by the Purchasers of the initial resale of the NotesOffered Securities and (ii) 180 days after the Closing Date, neither none of the Issuers nor any of Issuers, the Guarantors and their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase purchase, for any account in which the Issuers it or any of their respective its affiliates has a beneficial interest interest, any such Notes Offered Securities or knowingly attempt to induce any person to purchase any such NotesOffered Securities; and neither none of the Issuers nor any of Issuers, the Guarantors and their respective affiliates will make bids or purchases purchases, in any such case for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities. CSFB agrees to give such Notesnotice promptly upon such completion of the initial resale.
(j) For a period of 60 180 days after the Closing Date, Date (if the sale of the Offered Securities by the Issuers and each to the Purchasers shall have occurred), none of the Guarantors Issuers or any Guarantor will not offer or offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission SEC a registration statement under the this Securities Act relating to, any United States dollar-denominated debt securities issued or guaranteed by Holdings, the Issuers or the Guarantors and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such an offer, sale, pledge, pledge disposition or filing, without except
(i) promissory notes or other debt securities issued or guaranteed in immaterial amounts in the prior written consent ordinary course of business or (ii) issuances of Exchange Securities pursuant to the RepresentativeRegistration Rights Agreement. The Issuers and the Guarantors 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(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
(k) The Issuers will reasonably assist each Initial Purchaser in arranging for the Notes to be eligible for clearance and settlement through DTC.
(l) The Issuers will notify the Representative as soon as reasonably practicable, and confirm the notice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the Notes as a result of which any of the General Disclosure Package or the Final Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such General Disclosure Package or the Final Offering Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt by the Issuers of any notice with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuers will use their reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the General Disclosure Package or the Final Offering Memorandum or suspending any such qualification of the Notes and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(m) The Company will apply the net proceeds from the sale of the Notes as described in the General Disclosure Package and the Final Offering Memorandum under the heading “Use of proceeds”.
(n) None of the Issuers nor any of the Guarantors will 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 Notes.
(o) None of the Issuers nor any of their respective affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Notes in a manner that would require registration of the Notes under the Securities Act.
(p) None of the Issuers or any of their respective affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.Section
Appears in 1 contract
