Covenants of the Issuers. Each of the Issuers covenants and agrees with the Initial Purchasers that: (a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers. (b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject. (c) If, at any time prior to the completion of the sale of Securities by the Initial Purchasers, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance. (d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request. (e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum. (f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed. (g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum. (h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities. (i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act. (k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company. (l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers Issuers, jointly and severally, covenants and agrees with the Initial Purchasers that:
(a) The None of the Issuers will not amend or supplement the Final Memorandum Offering Circular or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall will not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum Offering Circular that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Each of the Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" blue sky laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Final Memorandum Offering Circular as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum Offering Circular to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum Offering Circular that corrects such statement or omission or effects such compliance.
(d) The Each of the Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum Offering Circular or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities Notes substantially as set forth under "Use of Proceeds" in the Final MemorandumOffering Circular.
(f) For so long as any of the Securities remain outstandingoutstanding (but in no event longer than five years), the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final MemorandumOffering Circular.
(h) None of the Issuers nor any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all their reasonable best efforts to (i) permit assist the Securities Initial Purchasers in permitting the Notes to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages system (the "Portal MarketPORTAL System") and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the several Initial Purchasers thatas follows:
(a) The At any time prior to the completion of the distribution of the Notes by the Initial Purchasers, the Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which give the Initial Purchasers shall not previously have been advised and furnished a copy for notice of its intention to prepare any supplement or amendment to the Offering Memorandum, will furnish the Initial Purchasers with copies of any such amendment, supplement or other document a reasonable period amount of time prior to the such proposed filing or use, and will not use any such amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale Purchasers shall reasonably object within a reasonable amount of the Securities by the Initial Purchaserstime after being furnished a copy thereof.
(b) The Issuers have furnished or will cooperate with furnish to the Initial Purchasers in arranging for the qualification such number of copies of the Securities for offering and sale under the securities Offering Memorandum (as amended or "Blue Sky" laws of which jurisdictions supplemented) as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectreasonably request.
(c) If, at At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known shall occur as a result of which it is necessary, in the Final reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Offering Memorandum in order to make the Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Issuers will forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers) so that, as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact, fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to the purchaser, not misleading, or if for any other reason it is necessary at any time and the Issuers will furnish to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense a reasonable number of the Company, an copies of such amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliancesupplement.
(d) The Issuers willwill endeavor in good faith, without chargein cooperation with the Initial Purchasers, provide at or prior to the date of the Offering Memorandum, to qualify the Notes for offering and sale under the securities laws relating to the offering or sale of the Notes of such jurisdictions as the Initial Purchasers and the Issuers may agree upon and to counsel maintain such qualification in effect for so long as required for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably requestdistribution thereof.
(e) The Issuers will apply not, and will cause the net proceeds from Manager not to, solicit any offer to buy or offer or sell the sale Notes by means of the Securities as set forth under "Use any form of Proceeds" in the Final Memorandumgeneral solicitation or general advertising.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates affiliates (as defined in Rule 501(b) of the Act) will selloffer, offer for sale sell or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Act) that could which will be integrated with the sale of the Securities Notes in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D Notes under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(jg) For The Issuers will, so long as any the Notes are outstanding and are "restricted securities" within the meaning of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Company Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is then not subject to Section 13 or 15(d) of the Exchange Act, make available to holders of the Notes and prospective purchasers of the Notes designated by such holders, upon request of such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Notes.
(kh) The Issuers will will, if requested by the Initial Purchasers, use all reasonable its best efforts in cooperation with the Initial Purchasers to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust CompanyCompany ("DTC").
(i) Each of the Notes will bear the legend contained in "Notice to Investors" in the Offering Memorandum upon the terms stated therein, except after such Note is resold or exchanged pursuant to a registration statement effective under the Act.
(j) The Issuers will apply the proceeds from the sale of the Notes as set forth under the caption "Use of Proceeds" in the Offering Memorandum.
(k) Prior to the Closing Date, the Issuers shall furnish to the Initial Purchasers, as soon as reasonably practicable after they have been prepared, copies of unaudited interim consolidated financial statements, if any, of the Issuers, for any periods subsequent to the periods covered by the financial statements appearing in the Offering Memorandum.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the The Issuers will not register claim the benefit of any transfer usury laws against any holders of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securitiesNotes.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers Issuers, jointly and severally, covenants and agrees with the Initial Purchasers that:
(a) The None of the Issuers will not amend or supplement the Final Offering Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall will not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Offering Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Each of the Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" blue sky laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Offering Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Offering Memorandum that corrects such statement or omission or effects such compliance.
(d) The Each of the Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Offering Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities Notes substantially as set forth under "Use of Proceeds" in the Final Offering Memorandum.
(f) For so long as any of the Securities remain outstandingoutstanding (but in no event longer than five years), the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Offering Memorandum.
(h) None of the Issuers nor any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all their reasonable best efforts to (i) permit assist the Securities Initial Purchasers in permitting the Notes to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages system (the "Portal MarketPORTAL System") and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each In consideration of the agreements of ------------------------ the Initial Purchasers contained in this Agreement, each of the Issuers jointly and severally covenants and agrees with the Initial Purchasers thatas follows:
(a) The Issuers will not amend or supplement To furnish to the Final Initial Purchasers, without charge, as many copies of each Memorandum or and any amendment or supplement supplements and amendments thereto of which as the Initial Purchasers shall not previously have been advised and furnished may reasonably request;
(b) Before amending or supplementing the Final Offering Memorandum subsequent to the execution of this Agreement, to furnish to the Initial Purchasers a copy for a reasonable period of time prior to the each such proposed amendment or supplement and as not to use any such proposed amendment or supplement to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.reasonably object;
(c) If, at any time prior to the completion of the sale distribution of the Securities by the Initial Purchasers, any event occurs or information becomes known as a result of which 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Offering Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Offering Memorandum that corrects such statement or omission or effects such compliance.compliance and deliver such amendment or supplement to the Initial Purchasers;
(d) The Issuers will, without charge, provide To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Initial Purchasers shall reasonably request; provided, however, that -------- ------- none of the Issuers shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; to file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided; to counsel for supply the Initial Purchasers with such information as many copies is necessary for the determination of the Preliminary Memorandum and legality of the Final Memorandum or any amendment or supplement thereto Securities in such jurisdictions as the Initial Purchasers may reasonably request.;
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as Not, and not permit any of the Securities remain outstandingits Affiliates to, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Securities Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Securities Act of the such Securities.;
(if) None Except following the effectiveness of the Issuers will engage in Exchange Offer Registration Statement, not to solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.;
(jg) For so long as While any of the Securities remain outstanding, the Company will to make available at its expenseavailable, upon request, to any holder seller and to any prospective purchaser of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.;
(kh) The Issuers will To use all reasonable its best efforts to (i) permit the Securities to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD National Association of Securities Dealers, Inc. relating to trading in the NASD's Portal PORTAL Market (the "Portal Market") and (ii) to use its best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.;
(i) For a period of five years following the Closing Date, furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture;
(j) Not, and not permit any of its Affiliates to, resell any Securities that have been acquired by any of them;
(k) To use the proceeds from the sale of the Securities in the manner set forth in the Final Offering Memorandum and in a manner that will not result in any of the Issuers becoming an investment company within the meaning of the Investment Company Act, and the rules and regulations of the Commission thereunder; and
(l) In Upon consummation of the StyroChem Acquisition and as of the Closing Date, to cause each of SP Acquisition Co., StyroChem International Inc. and StyroChem International, Ltd. to become a Guarantor within the meaning of the Indenture and this Agreement and to sign and become parties to the Indenture, this Agreement and the Registration Rights Agreement. The Company and each Guarantor shall not, and shall cause each of its Affiliates not to, offer, sell, contract to sell or grant any option to purchase or otherwise transfer or dispose of any debt security, or any security convertible into or in exchange for, any such debt security of the Company or any such Guarantor (other than any private loan, credit or financing agreement with a bank or similar institution, or in connection with Securities offered and sold in an off-shore transaction the Exchange Offer (as defined in Regulation S) the Issuers will not register any transfer Registration Rights Agreements)), for a period of such Securities not made in accordance with 180 days after the provisions date of Regulation S and will notthis Agreement, except in accordance with without the provisions prior written consent of Regulation S, if applicable, issue any such Securities in the form of definitive securitiesInitial Purchasers.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers Issuer and Guarantor covenants and agrees with the Initial Purchasers thatyou as follows:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised Each Issuer and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers Guarantor will cooperate with the Initial Purchasers Underwriters in arranging for the qualification of endeavoring to qualify the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers Underwriters may designate reasonably have designated in writing and will continue make such qualifications in effect for as long applications, file such documents, and furnish such information as may be necessary to complete the resale of the Securities; providedreasonably required for that purpose, however, provided that in connection therewith, none of the Issuers no Issuer or Guarantor shall be required to qualify as a foreign corporation or to execute file a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subjectqualified or required to file such a consent. The Issuers and Guarantors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Securities.
(b) At any time during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, the Issuers will give the Underwriters notice of their intention to prepare any supplement to the Prospectus or amendment to the Registration Statement, will furnish the Underwriters with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, and will not use any such amendment or supplement to which the Underwriters or counsel for the Underwriters shall reasonably object within five days of being furnished a copy thereof. Subject to the foregoing sentence, if filing of the Prospectus is required under Rule 424(b), the Issuers will cause the Prospectus including any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to you of such timely filing. The Issuers will promptly advise you when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, of any request by the Commission for any amendment to the Registration Statement or amendment or supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. Each of the Issuers will make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain, as soon as possible, the withdrawal thereof.
(c) IfThe Issuers have furnished or will furnish to the Underwriters such number of copies of the Prospectus as the Underwriters may reasonably request, at and the Issuers hereby consent to the use of such copies for purposes permitted by the Act. The Issuers will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any time prior amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed via XXXXX, except to the extent permitted by Regulation S-T.
(d) The Issuers will comply with the Act, the Exchange Act, the Act Regulations, and the regulations promulgated under the Exchange Act so as to permit the completion of the sale distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when the Prospectus is required by the Initial PurchasersAct or the Exchange Act to be delivered in connection with sales of the Securities, any event occurs shall occur or information becomes known condition shall exist as a result of which it is necessary, in the Final Memorandum as then amended reasonable opinion of counsel for the Underwriters or supplemented would include any for the Issuers, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact, fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if for any other reason it is necessary shall be necessary, in the reasonable opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Final Memorandum Prospectus in order to comply with applicable lawthe requirements of the Act or the Act Regulations, the Company Issuers will promptly notify prepare and file with the Initial Purchasers thereof and will prepareCommission, at the expense of the Companysubject to Section 3(b), an such amendment or supplement as may be necessary to the Final Memorandum that corrects correct such statement or omission or effects to make the Registration Statement or the Prospectus comply with such compliance.
(d) The requirements, and the Issuers willwill furnish to the Underwriters, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many such number of copies of the Preliminary Memorandum and the Final Memorandum or any such amendment or supplement thereto as the Initial Purchasers Underwriters may reasonably request.
(e) The Issuers will apply At any time during the net proceeds from period when the sale Prospectus is required to be delivered under the Act or the Exchange Act, Sun International and each of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities andits subsidiaries will, as soon as availablerequired, copies of any reports or financial statements furnished file promptly all documents required to or be filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject pursuant to Section 13 13, 14, or 15(d) of the Exchange Act.
(kf) The Issuers will will, if requested by the Underwriters, use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance cooperation with the rules and regulations adopted by the NASD relating Underwriters to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(lg) In connection Sun International will, for the shorter of the period the Securities remain outstanding and five years from the Closing Date, deliver to the Underwriters copies of annual reports and copies of all other documents, reports and information furnished by Sun International or any of its subsidiaries to their securityholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act.
(h) The Issuers shall apply the net proceeds of their sale of the Securities offered as set forth in the Prospectus.
(i) The Issuers shall not invest, or otherwise use the proceeds received by the Issuers from their sale of the Securities in such a manner as would require Sun International or any of its subsidiaries to register as an investment company under the 1940 Act or the rules and sold regulations thereunder.
(j) For a period of 90 days after the date of this Agreement, except as described in an off-shore transaction (as defined in Regulation S) or contemplated by the Prospectus, the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except without your prior written consent (which consent will not be unreasonably or untimely withheld), issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any debt securities of the Issuers or their subsidiaries (other than the Securities) (it being understood that debt incurred under the Existing Credit Agreement is not a debt security.)
(k) The Issuers and the Guarantors will not claim the benefit of any usury laws against any holders of Securities or Guarantees, respectively.
(l) The Issuers will timely file such reports pursuant to the Exchange Act as are necessary in accordance with order to make generally available to its securityholders as soon as practicable an earnings statement for the provisions purposes of, and to provide the benefits contemplated by, the last paragraph of Regulation S, if applicable, issue any Section 11(a) of the Act.
(m) Each Issuer will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by such Securities in Issuer prior to the form Closing Date and to satisfy all conditions precedent to the delivery of definitive securitiesthe Securities.
Appears in 1 contract
Samples: Purchase Agreement (Sun International North America Inc)
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will prepare the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum in the form approved by the Representative and will not amend or supplement the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum or any amendment or supplement thereto of which without first furnishing to the Initial Purchasers shall not previously have been advised and furnished Representative a copy for a reasonable period of time prior to the such proposed amendment or supplement and as will not use any amendment or supplement to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that Representative may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersobject.
(b) The Issuers will cooperate with furnish to the Initial Purchasers in arranging and to Counsel for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate concurrently with the Time of Sale and will continue such qualifications during the period referred to in effect for paragraph (c) below, without charge, as long as may be necessary to complete the resale many copies of the Securities; provided, however, that in connection therewith, none of Preliminary Memorandum and the Issuers shall be required to qualify Offering Memorandum and any amendments and supplements thereto as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectthey reasonably may request.
(c) IfBefore making, at preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Partnership will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects.
(d) At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known condition exists as a result of which the Final Preliminary Memorandum or the Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Final Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Company Issuers will promptly (i) notify the Initial Purchasers thereof of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Companytheir own expense, an amendment or supplement to the Final Preliminary Memorandum or the Offering Memorandum, so that corrects such statement the statements in the Preliminary Memorandum or omission the Offering Memorandum as so amended or effects such compliance.
supplemented will not, in the light of the circumstances when the Preliminary Memorandum or the Offering Memorandum is delivered to a purchaser, be misleading or so that the Preliminary Memorandum or the Offering Memorandum, as amended or supplemented, will comply with applicable law; and (diii) The Issuers will, without charge, provide supply any supplemented or amended Preliminary Memorandum or Offering Memorandum to the Initial Purchasers and to counsel Counsel for the Initial Purchasers Purchasers, without charge, in such quantities as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may be reasonably requestrequested.
(e) The Issuers will apply (i) cooperate with the net proceeds from Initial Purchasers to qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative may designate and (ii) maintain such qualifications for so long as required for the sale of the Securities Notes by the Initial Purchasers. The Issuers will promptly advise the Initial Purchasers of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. None of the Issuers or any of the Guarantors shall be required to qualify as set forth under "Use a foreign corporation or other entity or to take any action that would subject it to general service of Proceeds" process in the Final Memorandumany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or other entity.
(f) For so long as At any time prior to the completion of the Securities remain outstandingdistribution of the Notes by the Initial Purchasers, the Issuers will furnish deliver to the Initial Purchasers copies such additional information concerning the business and financial condition of all reports the Issuers and other communications the Guarantors as the Initial Purchasers may from time to time request and whenever it or any of its subsidiaries publishes or makes available to the public (financial by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) furnished by any information that would reasonably be expected to be material in the Issuers context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the Trustee nature of such information or to event. The Issuers will likewise notify the holders Initial Purchasers of (i) any decrease in the rating of the Notes or any other debt securities of an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities andAct) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, as soon as available, copies the Issuers become aware of any reports such decrease, notice or financial statements furnished to or filed by the public announcement. The Issuers with the Commission or any national or international securities exchange on which any class will also, for a period of securities of the Issuers may be listed.
(g) Prior to three years from the Closing Date, the Company will furnish deliver to the Initial Purchasers, as soon as they available and without request, copies of any reports and financial statements furnished to or filed with the Commission or required to be delivered to the Trustee or holders of the Notes pursuant to the Indenture or otherwise; provided, however, that if such reports or financial statements are publically available on the Commission’s XXXXX database, delivery to the Initial Purchasers shall not be required.
(g) During the period of one year after the Closing Date, the Issuers will not, and will not permit any of their Affiliates to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been preparedacquired by any of them, a copy of any unaudited interim financial statements of other than pursuant to an effective registration statement under the Company for any period subsequent to Securities Act or in accordance with Rule 144 under the period covered by the most recent financial statements appearing in the Final MemorandumSecurities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(i) None of the Issuers nor or any of their Affiliates Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(j) None the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(k) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale securities of the Securities same or a similar class as the Notes, other than the Notes offered or sold to the Initial Purchasers hereunder, in a manner that which would require the registration under the Securities Act of the SecuritiesNotes.
(il) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so So long as any of the Securities remain outstanding, Notes are “restricted securities” within the Company will make available at its expense, upon request, to any holder meaning of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Securities Act, unless at any time that the Company is Issuers are not then subject to Section 13 or 15(d) of the Exchange Act, the Issuers will provide at their expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(km) The Issuers will use all reasonable efforts apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and the Offering Memorandum.
(n) Until completion of the distribution, neither the Issuers nor any of their Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(o) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE NOTES AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market PURSUANT TO CLAUSE (the "Portal Market"D) and PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyIN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER OR AN ISSUER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(lp) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the The Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities of an Issuer substantially similar to the provisions Notes (other than the Notes offered pursuant to this Agreement) for a period of 60 days after the date hereof, without the prior written consent of Xxxxx Fargo Securities, LLC.
(q) The Issuers will, promptly after they have notified the Representative of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation SSection 1.6011-4), if applicable, issue deliver a duly completed copy of IRS Form 8886 or any such Securities successor form to the Representative.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the form capacity of definitive securitiesan arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of the Notes and the Guarantees contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers or any other person. Additionally, no Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuers or Guarantors with respect thereto. Any review by the Initial Purchasers of the Issuers or the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Issuers or the Guarantors.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers Issuer and Guarantor covenants and agrees ------------------------ with the Initial Purchasers thatyou as follows:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised Each Issuer and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of endeavoring to qualify the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate reasonably have designated in writing and will continue make such qualifications in effect for as long applications, file such documents, and furnish such information as may be necessary to complete the resale of the Securities; providedreasonably required for that purpose, however, provided that in connection therewith, none of the Issuers no Issuer or Guarantor shall be required -------- to qualify as a foreign corporation or to execute file a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subjectqualified or required to file such a consent. The Issuers and Guarantors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Initial Purchasers may reasonably request for distribution of the Securities.
(cb) If, at At any time prior to the completion of the sale distribution of the Securities by the Initial PurchasersPurchasers to purchasers who are not affiliates thereof, the Issuers will give the Initial Purchasers notice of their intention to prepare any supplement or amendment to the Offering Memorandum, will furnish the Initial Purchasers with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, and will not use any such amendment or supplement to which the Initial Purchasers or counsel for the Initial Purchasers shall reasonably object within five days of being furnished a copy thereof.
(c) The Issuers have furnished or will furnish to the Initial Purchasers such number of copies of the Offering Memorandum (as amended or supplemented) as the Initial Purchasers may reasonably request.
(d) At any time prior to the completion of the distribution of the Securities by the Initial Purchasers to purchasers who are not affiliates thereof, the Issuers will advise you promptly and, if requested by you, confirm such advice in writing, of the happening of any event that makes any statement of a material fact made in the Offering Memorandum (as amended or supplemented from time to time) untrue or which requires the making of any addition to or change in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, during the period specified in the first sentence of this paragraph, any event occurs or information becomes known shall occur as a result of which it is necessary, in the Final reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Offering Memorandum in order to make the Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Issuers will forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers) so that, as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact, fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to the purchaser, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers a reasonable number of copies of all reports and other communications such amendment or supplement.
(financial or otherwisee) furnished by At any time prior to completion of the Issuers to the Trustee or to the holders distribution of the Securities andby the Initial Purchasers to purchasers who are not affiliates thereof, Sun International and each of its subsidiaries will, as soon as availablerequired, copies of any reports or financial statements furnished file promptly all documents required to or be filed by the Issuers with the Commission pursuant to Section 13, 14, or any national or international securities exchange on which any class of securities 15(d) of the Issuers may be listedExchange Act.
(f) None of Sun International, SINA, the Guarantors or their subsidiaries will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising.
(g) Prior to the Closing DateNone of Sun International, SINA, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy Guarantors or their subsidiaries or any affiliate of any unaudited interim financial statements of them (as defined in Rule 501(b) of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(hAct) None of the Issuers nor any of their Affiliates will selloffer, offer for sale sell or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Act) that could which will be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Act Act.
(h) During the period from the Closing Date to two years after the Closing Date, none of Sun International, SINA, the Guarantors or their subsidiaries will not, and will not permit any "affiliate" (as defined in Rule 144 under the Act) of any of them to, resell any of the SecuritiesSecurities that have been reacquired by them, except for Securities purchased by Sun International or its subsidiaries or any of their affiliates and resold in a transaction registered under the Act.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (Sun International and SINA will, so long as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering are outstanding and are "restricted securities" within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Company Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is then not subject to Section 13 or 15(d) of the Exchange Act, make available to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Securities.
(kj) The Issuers will will, if requested by the Initial Purchasers, use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance cooperation with the rules and regulations adopted by the NASD relating Initial Purchasers to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) Each of the Securities will bear the legend contained in "Notice to Investors" in the Offering Memorandum and upon the other terms stated therein, except after such Securities are resold or exchanged pursuant to a registration statement effective under the Act.
(l) In connection Sun International will, for the shorter of the period the Securities remain outstanding and five years from the Closing Date, deliver to the Initial Purchasers copies of annual reports and copies of all other documents, reports and information furnished by Sun International or any of its subsidiaries to their securityholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act.
(m) The Issuers shall apply the net proceeds of their sale of the Securities offered as set forth in the Offering Memorandum.
(n) The Issuers shall not invest, or otherwise use the proceeds received by the Issuers from their sale of the Securities in such a manner as would require Sun International or any of its subsidiaries to register as an investment company under the 1940 Act or the rules and sold regulations thereunder.
(o) For a period of 90 days after the date of this Agreement, except as described in an off-shore transaction (as defined in Regulation S) or contemplated by the Offering Memorandum, the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with without your prior written consent (which consent will not be unreasonably or untimely withheld), issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any debt securities of the provisions Issuers or their subsidiaries (other than the Securities or the New Notes) (it being understood that debt incurred under the Existing Credit Agreement, as amended, or any replacement thereof, is not a debt security).
(p) The Issuers and the Guarantors will not claim the benefit of Regulation Sany usury laws against any holders of Securities or Guarantees, if applicable, issue any respectively.
(q) Each Issuer will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by such Securities in Issuer prior to the form Closing Date and to satisfy all conditions precedent to the delivery of definitive securitiesthe Securities.
Appears in 1 contract
Covenants of the Issuers. Each The Issuers and each of the Issuers covenants Guarantors covenant and agrees agree with the Initial Purchasers thatPurchaser as follows:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers Purchaser shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for the Initial PurchasersPurchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial PurchasersPurchaser.
(b) The Issuers and the Guarantors will cooperate with the Initial Purchasers Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or "“Blue Sky" ” laws of which jurisdictions as the Initial Purchasers Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers and the Guarantors shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchaser of the Securities or the Private Exchange Securities, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers Purchaser may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "“Use of Proceeds" ” in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listedSecurities.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor Issuers, the Guarantors or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "“security" ” (as defined in the Act) that could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(ih) None The Issuers will not, and will not permit any of the Issuers will Guarantors to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(ji) For so long as any of the Securities remain outstanding, the Company Issuers will make available at its their expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(kj) The Issuers will use all their reasonable best efforts to (i) permit the Securities to be designated as PortalPORTAL-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's ’s Portal Market (the "“Portal Market"”) and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(lk) In connection with Securities offered and sold in an off-off shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(l) None of the Issuers, the Guarantors or any of their respective Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities.
(m) For a period of two years (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the date any Securities are acquired from the Issuers, the Subsidiaries or any of their Affiliates, none of the Issuers, the Guarantors or any of their Affiliates will sell any such Securities.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants Issuers, on behalf of itself and agrees with the Initial Purchasers thatits Subsidiaries, hereby agrees:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at At any time prior to the completion of the sale of Securities the Units by the Initial PurchasersPurchaser, to (i) advise the Initial Purchaser promptly after obtaining knowledge (and, if requested by the Initial Purchaser, confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Units for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Final Offering Circular untrue or that requires the making of any additions to or changes in the Final Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) use its commercially reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Units under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Units under any such laws, use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish the Initial Purchaser, without charge, as many copies of the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser's reasonable request, any amendment or supplement to the Final Offering Circular that the Initial Purchaser, upon written advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Issuers hereby consent to the use of the Preliminary Offering Circular and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales).
(c) Not to amend or supplement the Final Offering Circular prior to the Closing Date unless the Initial Purchaser shall have been advised thereof and shall have previously provided a written consent thereto.
(d) So long as the Initial Purchaser shall hold any of the Units (as determined by the Initial Purchaser), (i) if any event occurs or information becomes known shall occur as a result of which which, in the reasonable judgment of the Company or the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum Offering Circular to comply with applicable lawApplicable Law, the Company will promptly notify the Initial Purchasers thereof and will to prepare, at the expense of the Company, an appropriate amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
Offering Circular (d) The Issuers will, without charge, provide in form and substance reasonably satisfactory to the Initial Purchasers and Purchaser) so that (A) as so amended or supplemented, the Final Offering Circular will not include an untrue statement of material fact or omit to counsel for state a material fact necessary in order to make the Initial Purchasers as many copies statements therein, in the light of the Preliminary Memorandum circumstances under which they were made, not misleading, and (B) the Final Memorandum Offering Circular will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or any advisable to amend or supplement the Final Offering Circular so that the Final Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement thereto as to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchasers may reasonably requestPurchaser) so that the Final Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule.
(e) The Issuers will apply To cooperate with the net proceeds from Initial Purchaser and the sale Initial Purchaser's counsel in connection with the qualification of the Securities Units under the securities or Blue Sky laws of such jurisdictions as set forth under "Use of Proceeds" the Initial Purchaser may reasonably request and continue such qualification in the Final Memorandumeffect so long as reasonably required for Exempt Resales.
(f) For so long as Whether or not any of the Securities remain outstanding, Offering or the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration transactions contemplated under the Act of the Securities.
Documents are consummated or this Agreement is terminated, to pay (i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) all costs, expenses, fees and taxes incident to and in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
with: (j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation SA) the Issuers will not register any transfer preparation, printing and distribution of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.the
Appears in 1 contract
Samples: Purchase Agreement (Hockey Co)
Covenants of the Issuers. Each of the Issuers Issuer and Guarantor covenants and agrees with the Initial Purchasers thatyou as follows:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised Each Issuer and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of endeavoring to qualify the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate reasonably have designated in writing and will continue make such qualifications in effect for as long applications, file such documents, and furnish such information as may be necessary to complete the resale of the Securities; providedreasonably required for that purpose, however, provided that in connection therewith, none of the Issuers no Issuer or Guarantor shall be required to qualify as a foreign corporation or to execute file a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subjectqualified or required to file such a consent. The Issuers and Guarantors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Initial Purchasers may reasonably request for distribution of the Securities.
(cb) If, at At any time prior to the completion of the sale distribution of the Securities by the Initial PurchasersPurchasers to purchasers who are not affiliates thereof, the Issuers will give the Initial Purchasers notice of their intention to prepare any supplement or amendment to the Offering Memorandum, will furnish the Initial Purchasers with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, and will not use any such amendment or supplement to which the Initial Purchasers or counsel for the Initial Purchasers shall reasonably object within five days of being furnished a copy thereof.
(c) The Issuers have furnished or will furnish to the Initial Purchasers such number of copies of the Offering Memorandum (as amended or supplemented) as the Initial Purchasers may reasonably request.
(d) At any time prior to the completion of the distribution of the Securities by the Initial Purchasers to purchasers who are not affiliates thereof, the Issuers will advise you promptly and, if requested by you, confirm such advice in writing, of the happening of any event that makes any statement of a material fact made in the Offering Memorandum (as amended or supplemented from time to time) untrue or which requires the making of any addition to or change in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, during the period specified in the first sentence of this paragraph, any event occurs or information becomes known shall occur as a result of which it is necessary, in the Final reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Offering Memorandum in order to make the Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Issuers will forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers) so that, as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact, fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to the purchaser, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers a reasonable number of copies of all reports and other communications such amendment or supplement.
(financial or otherwisee) furnished by At any time prior to completion of the Issuers to the Trustee or to the holders distribution of the Securities andby the Initial Purchasers to purchasers who are not affiliates thereof, Sun International and each of its subsidiaries will, as soon as availablerequired, copies of any reports or financial statements furnished file promptly all documents required to or be filed by the Issuers with the Commission pursuant to Section 13, 14, or any national or international securities exchange on which any class of securities 15(d) of the Issuers may be listedExchange Act.
(f) None of Sun International, SINA, the Guarantors or their subsidiaries will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising.
(g) Prior to the Closing DateNone of Sun International, SINA, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy Guarantors or their subsidiaries or any affiliate of any unaudited interim financial statements of them (as defined in Rule 501(b) of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(hAct) None of the Issuers nor any of their Affiliates will selloffer, offer for sale sell or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Act) that could which will be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Act Act.
(h) During the period from the Closing Date to three years after the Closing Date, none of Sun International, SINA, the Guarantors or their subsidiaries will not, and will not permit any "affiliate" (as defined in Rule 144 under the Act) of any of them to, resell any of the SecuritiesSecurities that have been reacquired by them, except for Securities purchased by Sun International or its subsidiaries or any of their affiliates and resold in a transaction registered under the Act.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (Sun International and SINA will, so long as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering are outstanding and are "restricted securities" within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Company Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is then not subject to Section 13 or 15(d) of the Exchange Act, make available to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Securities.
(kj) The Issuers will will, if requested by the Initial Purchasers, use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance cooperation with the rules and regulations adopted by the NASD relating Initial Purchasers to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) Each of the Securities will bear the legend contained in "Notice to Investors" in the Offering Memorandum and upon the other terms stated therein, except after such Securities are resold or exchanged pursuant to a registration statement effective under the Act.
(l) In connection Sun International will, for the shorter of the period the Securities remain outstanding and five years from the Closing Date, deliver to the Initial Purchasers copies of annual reports and copies of all other documents, reports and information furnished by Sun International or any of its subsidiaries to their securityholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act.
(m) The Issuers shall apply the net proceeds of their sale of the Securities offered as set forth in the Offering Memorandum.
(n) The Issuers shall not invest, or otherwise use the proceeds received by the Issuers from their sale of the Securities in such a manner as would require Sun International or any of its subsidiaries to register as an investment company under the 1940 Act or the rules and sold regulations thereunder.
(o) For a period of 90 days after the date of this Agreement, except as described in an off-shore transaction (as defined in Regulation S) or contemplated by the Offering Memorandum, the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with without your prior written consent (which consent will not be unreasonably or untimely withheld), issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any debt securities of the provisions Issuers or their subsidiaries (other than the Securities or the New Notes) (it being understood that debt incurred under the Existing Credit Agreement, as amended, is not a debt security).
(p) The Issuers and the Guarantors will not claim the benefit of Regulation Sany usury laws against any holders of Securities or Guarantees, if applicable, issue any respectively.
(q) Each Issuer will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by such Securities in Issuer prior to the form Closing Date and to satisfy all conditions precedent to the delivery of definitive securitiesthe Securities.
Appears in 1 contract
Samples: Purchase Agreement (Sun International North America Inc)
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will prepare the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum in the form approved by the Representative and will not amend or supplement the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum without first furnishing to the Representative a copy of such proposed amendment or supplement and will not distribute any Preliminary Memorandum, the Offering Memorandum, Final Memorandum or, in each case, any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that Representative may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersreasonably object.
(b) The Issuers will cooperate with furnish to the Initial Purchasers in arranging and to Counsel for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate concurrently with the Time of Sale and will continue such qualifications during the period referred to in effect for paragraph (c) below, without charge, as long as may be necessary to complete the resale many copies of the Securities; provided, however, that in connection therewith, none of Preliminary Memorandum and the Issuers shall be required to qualify Offering Memorandum and any amendments and supplements thereto as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectthey reasonably may request.
(c) IfBefore making, at preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Partnership will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects.
(d) At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known condition exists as a result of which the Final Preliminary Memorandum or the Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Final Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Company Issuers will promptly (i) notify the Initial Purchasers thereof of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Companytheir own expense, an amendment or supplement to the Final Preliminary Memorandum or the Offering Memorandum, so that corrects such statement the statements in the Preliminary Memorandum or omission the Offering Memorandum as so amended or effects such compliance.
supplemented will not, in the light of the circumstances when the Preliminary Memorandum or the Offering Memorandum, is delivered to a purchaser, be misleading or so that the Preliminary Memorandum or the Offering Memorandum, as amended or supplemented, will comply with applicable law; and (diii) The Issuers willsupply any supplemented or amended the Preliminary Memorandum or the Offering Memorandum, without charge, provide to the Initial Purchasers and to counsel Counsel for the Initial Purchasers Purchasers, without charge, in such quantities as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may be reasonably requestrequested.
(e) The Issuers will apply (i) cooperate with the net proceeds from Initial Purchasers to qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative may designate and (ii) maintain such qualifications for so long as required for the sale of the Securities Notes by the Initial Purchasers. The Issuers will promptly advise the Initial Purchasers of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. None of the Issuers or any of the Guarantors shall be required to qualify as set forth under "Use a foreign corporation or other entity or to take any action that would subject it to general service of Proceeds" process in the Final Memorandumany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or other entity.
(f) For so long as At any time prior to the completion of the Securities remain outstandingdistribution of the Notes by the Initial Purchasers, the Issuers will furnish deliver to the Initial Purchasers copies such additional information concerning the business and financial condition of all reports the Issuers and other communications the Guarantors as the Initial Purchasers may from time to time request and whenever it or any of its subsidiaries publishes or makes available to the public (financial by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) furnished by any information that would reasonably be expected to be material in the Issuers context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the Trustee nature of such information or to event. The Issuers will likewise notify the holders Initial Purchasers of (i) any decrease in the rating of the Notes or any other debt securities of an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities andAct) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, as soon as available, copies the Issuers become aware of any reports such decrease, notice or financial statements furnished to or filed by the public announcement. The Issuers with the Commission or any national or international securities exchange on which any class will also, for a period of securities of the Issuers may be listed.
(g) Prior to three years from the Closing Date, the Company will furnish deliver to the Initial Purchasers, as soon as they available and without request, copies of any reports and financial statements furnished to or filed with the Commission or required to be delivered to the Trustee or holders of the Notes pursuant to the Indenture or otherwise; provided, however, that if such reports or financial statements are publically available on the Commission’s XXXXX database, delivery to the Initial Purchasers shall not be required.
(g) During the period of one year after the Closing Date, the Issuers will not, and will not permit any of their Affiliates to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been preparedacquired by any of them, a copy of any unaudited interim financial statements of other than pursuant to an effective registration statement under the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final MemorandumSecurities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(i) None of the Issuers nor or any of their Affiliates Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 5.02(c) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(j) None the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(k) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) securities that could is or will be integrated with the sale of the Securities Notes, in a manner that which would require the registration under the Securities Act of the SecuritiesNotes.
(il) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so So long as any of the Securities remain outstanding, Notes are “restricted securities” within the Company will make available at its expense, upon request, to any holder meaning of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Securities Act, unless at any time that the Company is Issuers are not then subject to Section 13 or 15(d) of the Exchange Act, the Issuers will provide at their expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(km) The Issuers will use all reasonable efforts apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and the Offering Memorandum.
(n) Until completion of the distribution, neither the Issuers nor any of their Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(o) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE NOTES AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market PURSUANT TO CLAUSE (the "Portal Market"D) and PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyIN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER OR AN ISSUER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(lp) In connection with Securities offered The Issuers and sold in an off-shore transaction (as defined in Regulation S) each of the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and Guarantors will not, except in accordance with directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities issued or guaranteed by the provisions Issuers or any of the Guarantors and having a tenor of more than one year (other than the Notes offered pursuant to this Agreement) for a period of 90 days after the date hereof, without the prior written consent of Xxxxx Fargo Securities, LLC.
(q) The Issuers will, promptly after they have notified the Representative of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation SSection 1.6011-4), if applicable, issue deliver a duly completed copy of IRS Form 8886 or any such Securities in successor form to the form of definitive securitiesRepresentative.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees with the Initial Purchasers thatagree as follows:
(a) The If and to the extent the Remarketed Notes are required (in the view of counsel, which need not be in the form of a written opinion, for either the Remarketing Agent or the Issuers) to be registered under the Securities Act as in effect at the time of the Remarketing, the Issuers will not amend or supplement shall:
(i) prepare the Final Memorandum or Registration Statement and the Prospectus, in a form approved by the Remarketing Agent, file any amendment or supplement thereto of which such Prospectus pursuant to the Initial Purchasers shall not previously have been advised Securities Act within the period required by the Securities Act and furnished a copy for a the rules and regulations thereunder and use commercially reasonable period of time efforts to cause the Registration Statement to be declared effective by the Commission prior to the proposed second Business Day immediately preceding the applicable Remarketing Date;
(ii) file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement and as to which the Initial Purchasers shall not have given their consentProspectus that may, which consent shall not be unreasonably withheld. The Issuers will promptly, upon in the reasonable request judgment of the Initial Purchasers Issuers or counsel for the Initial PurchasersRemarketing Agent, make be required by the Securities Act or requested by the Commission;
(iii) advise the Remarketing Agent, promptly after they receive notice thereof, of the time when any amendments or supplements amendment to the Preliminary Memorandum Registration Statement has been filed or becomes effective or any supplement to the Final Memorandum that may Prospectus or any amended Prospectus has been filed and to furnish the Remarketing Agent with copies thereof;
(iv) file promptly all reports and any definitive proxy or information statements required to be necessary filed by the Unit Issuer with the Commission pursuant to Section 13(a), 13(c), 14 or advisable 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a Prospectus is required in connection with the resale offering or sale of the Securities Remarketed Notes;
(v) file all Issuer Free Writing Prospectuses required to be filed by the Initial Purchasers.Issuers with the Commission pursuant to Rule 433(d) under the Securities Act;
(vi) advise the Remarketing Agent, promptly after they receive notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, of the suspension of the qualification of any of the Remarketed Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information, and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or any Prospectus or suspending any such qualification, to use promptly every reasonable effort to obtain its withdrawal;
(vii) furnish promptly to the Remarketing Agent such copies of the following documents as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering Preliminary Prospectus and sale under the securities any amended or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securitiessupplemented Preliminary Prospectus; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) Ifthe Prospectus and any amended or supplemented Prospectus; and (d) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time prior when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the completion of Securities Act) is required in connection with the sale of Securities by the Initial PurchasersRemarketing, any event occurs or information becomes known shall have occurred as a result of which the Final Memorandum Prospectus as then amended or supplemented would include any untrue statement of a material fact, fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or if for any other reason it is shall be necessary at any time during such same period to amend or supplement the Final Memorandum Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, the Company will promptly to notify the Initial Purchasers thereof Remarketing Agent and, upon its request, to file such document and will prepare, at the expense of the Company, an amendment or supplement to prepare and furnish without charge to the Final Memorandum Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that corrects will correct such statement or omission or effects effect such compliance;
(viii) during the time between the applicable Commencement Date and the Reset Effective Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(ix) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, the Unit Issuer will make “generally available to its security holders” an “earnings statement” of the Unit Issuer complying with (which need not be audited) Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Unit Issuer, Rule 158 under the Securities Act). The terms “generally available to its security holders” and “earnings statement” shall have the meanings set forth in Rule 158; and
(x) take such action as the Remarketing Agent may reasonably request in order to qualify the Remarketed Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Remarketing Agent may reasonably request; provided that in no event shall either Issuer be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(b) The Issuers shall pay: (i) the costs incident to the preparation and printing of the Registration Statement, if any, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the costs of distributing the Registration Statement, if any, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the several jurisdictions as provided in Section 5(a)(x) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including any related reasonable fees and expenses of counsel to the Remarketing Agent); (iv) any filing fees incident to any required review and clearance by the Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Remarketed Notes; (v) all other costs and expenses incident to the performance of the obligations of the Issuers hereunder and the Remarketing Agent hereunder; and (vi) the reasonable fees and expenses of counsel to the Remarketing Agent in connection with its duties hereunder.
(c) The Issuers shall furnish the Remarketing Agent with such information and documents as the Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information that parties would customarily require in connection with a due diligence investigation conducted in accordance with applicable securities laws and to cause the Issuers’ officers, directors, employees and accountants to participate in all such discussions and to supply all such information reasonably requested by any such Person in connection with such investigation.
(d) The At the written request of the Remarketing Agent, between the applicable Commencement Date and the applicable Reset Effective Date, the Issuers willwill not, without chargethe prior written consent of the Remarketing Agent (which consent may be withheld at the sole discretion of the Remarketing Agent), provide directly or indirectly, sell, offer, contract or grant any option to sell, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of either Issuer similar to the Initial Purchasers and Remarketed Notes or securities exchangeable for or convertible into debt securities similar to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably requestRemarketed Notes.
(e) The Issuers will apply represent and agree that, unless they obtain the net proceeds from the sale prior consent of the Securities Remarketing Agent, and the Remarketing Agent represents and agrees that, unless it obtains the prior consent of each Issuer, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as set forth under "Use defined in Rule 405 of Proceeds" the Act, required to be filed with the Commission. Any such free writing prospectus consented to in writing by the Final MemorandumIssuers and the Remarketing Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers represent that they have treated and agree that they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and have complied and will comply with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) For so long as any The Issuers shall prepare a final term sheet relating to the Remarketed Notes, containing only information that describes the final terms of the Securities remain outstanding, Remarketed Notes after providing the Issuers will furnish Remarketing Agent and its legal counsel with a reasonable opportunity to the Initial Purchasers copies of all reports review and other communications comment on such final term sheet (financial or otherwise) furnished such final term sheet to be in form and substance as last reviewed by the Issuers to Remarketing Agent and the Trustee or to the holders of the Securities andIssuers), as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company and will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to file such final term sheet within the period covered required by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2Rule 433(d) of the ActAct following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Assured Guaranty LTD)
Covenants of the Issuers. Each The Issuers, jointly and severally, covenant and agree with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not unreasonably be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none neither of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities initial resale by the Initial PurchasersPurchasers of the Securities or the Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, if at all, a copy of any available unaudited consolidated interim financial statements of the Company and any available unaudited interim consolidated financial statements of CGGS for any period subsequent to the period covered by the most recent financial statements of the Company and CGGS respectively, appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(i) None The Issuers will not, and will not permit any of the Issuers will Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof thereof, the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to for trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal PORTAL Market") of the NASD and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will prepare the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum in the form approved by the Representative and will not amend or supplement the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum without first furnishing to the Representative a copy of such proposed amendment or supplement and will not distribute any Preliminary Memorandum, the Offering Memorandum, Final Memorandum or, in each case, any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that Representative may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersreasonably object.
(b) The Issuers will cooperate with furnish to the Initial Purchasers in arranging and to Counsel for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate concurrently with the Time of Sale and will continue such qualifications during the period referred to in effect for paragraph (c) below, without charge, as long as may be necessary to complete the resale many copies of the Securities; provided, however, that in connection therewith, none of Preliminary Memorandum and the Issuers shall be required to qualify Offering Memorandum and any amendments and supplements thereto as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectthey reasonably may request.
(c) IfBefore making, at preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Partnership will furnish to the Representative and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects.
(d) At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known condition exists as a result of which the Final Preliminary Memorandum or the Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Final Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Company Issuers will promptly (i) notify the Initial Purchasers thereof of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Companytheir own expense, an amendment or supplement to the Final Preliminary Memorandum or the Offering Memorandum, so that corrects such statement the statements in the Preliminary Memorandum or omission the Offering Memorandum as so amended or effects such compliance.
supplemented will not, in the light of the circumstances when the Preliminary Memorandum or the Offering Memorandum, is delivered to a purchaser, be misleading or so that the Preliminary Memorandum or the Offering Memorandum, as amended or supplemented, will comply with applicable law; and (diii) The Issuers willsupply any supplemented or amended the Preliminary Memorandum or the Offering Memorandum, without charge, provide to the Initial Purchasers and to counsel Counsel for the Initial Purchasers Purchasers, without charge, in such quantities as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may be reasonably requestrequested.
(e) The Issuers will apply (i) cooperate with the net proceeds from Initial Purchasers to qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative may designate and (ii) maintain such qualifications for so long as required for the sale of the Securities Notes by the Initial Purchasers. The Issuers will promptly advise the Initial Purchasers of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. None of the Issuers or any of the Guarantors shall be required to qualify as set forth under "Use a foreign corporation or other entity or to take any action that would subject it to general service of Proceeds" process in the Final Memorandumany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or other entity.
(f) For so long as At any time prior to the completion of the Securities remain outstandingdistribution of the Notes by the Initial Purchasers, the Issuers will furnish deliver to the Initial Purchasers copies such additional information concerning the business and financial condition of all reports the Issuers and other communications the Guarantors as the Initial Purchasers may from time to time request and whenever it or any of its subsidiaries publishes or makes available to the public (financial by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) furnished by any information that would reasonably be expected to be material in the Issuers context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the Trustee nature of such information or to event. The Issuers will likewise notify the holders Initial Purchasers of (i) any decrease in the rating of the Notes or any other debt securities of an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities andAct) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, as soon as available, copies the Issuers become aware of any reports such decrease, notice or financial statements furnished to or filed by the public announcement. The Issuers with the Commission or any national or international securities exchange on which any class will also, for a period of securities of the Issuers may be listed.
(g) Prior to three years from the Closing Date, the Company will furnish deliver to the Initial Purchasers, as soon as they available and without request, copies of any reports and financial statements furnished to or filed with the Commission or required to be delivered to the Trustee or holders of the Notes pursuant to the Indenture or otherwise; provided, however, that if such reports or financial statements are publically available on the Commission’s XXXXX database, delivery to the Initial Purchasers shall not be required.
(g) During the period of one year after the Closing Date, the Issuers will not, and will not permit any of their Affiliates to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been preparedacquired by any of them, a copy of any unaudited interim financial statements of other than pursuant to an effective registration statement under the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final MemorandumSecurities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(i) None of the Issuers nor or any of their Affiliates Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 5.02(c) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.
(j) None the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(k) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) securities that could is or will be integrated with the sale of the Securities Notes, in a manner that which would require the registration under the Securities Act of the SecuritiesNotes.
(il) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so So long as any of the Securities remain outstanding, Notes are “restricted securities” within the Company will make available at its expense, upon request, to any holder meaning of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Securities Act, unless at any time that the Company is Issuers are not then subject to Section 13 or 15(d) of the Exchange Act, the Issuers will provide at their expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(km) The Issuers will use all reasonable efforts apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and the Offering Memorandum.
(n) Until completion of the distribution, neither the Issuers nor any of their Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(o) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE NOTES AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market PURSUANT TO CLAUSE (the "Portal Market"D) and PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyIN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER OR AN ISSUER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(lp) In connection with Securities offered The Issuers and sold in an off-shore transaction (as defined in Regulation S) each of the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and Guarantors will not, except in accordance with directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities issued or guaranteed by the provisions Issuers or any of the Guarantors and having a tenor of more than one year (other than the Notes offered pursuant to this Agreement) for a period of 90 days after the date hereof, without the prior written consent of Xxxxx Fargo Securities, LLC.
(q) The Issuers will, promptly after they have notified the Representative of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation SSection 1.6011-4), if applicable, issue deliver a duly completed copy of IRS Form 8886 or any such Securities in successor form to the form of definitive securitiesRepresentative.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers Purchaser that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers Purchaser shall not have given their its consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for the Initial PurchasersPurchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial PurchasersPurchaser.
(b) The Issuers will cooperate with the Initial Purchasers Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchaser of the Securities or the Private Exchange Notes and Private Exchange Notes Guarantees, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers Purchaser may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers Company will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Issuers Company to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial PurchasersPurchaser, as soon as they have been prepared, a copy of any available unaudited interim consolidated financial statements of the Company Company, any unaudited interim consolidated financial statements of CPG and any available unaudited interim consolidated financial statements of Arcon for any period subsequent to the period covered by the most recent consolidated financial statements of the Company, consolidated financial statements of CPG or the most recent consolidated financial statements of Arcon appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(i) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers Company will use all reasonable its best efforts to (i) permit the Securities to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers Company will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each The Issuers covenant and agree, jointly ------------------------- and severally, with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent reasonably object to in writing; any objection to such amendment or supplement shall not be unreasonably withheldmade within two business days after receiving a draft copy thereof. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Each of the Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale distribution of the SecuritiesNotes; provided, however, that in connection therewith, none therewith neither of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any a period of one year after the Securities remain outstandingClosing Date, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(ih) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(ji) For so So long as any of the Securities Notes remain outstandingoutstanding and have not been registered pursuant to the Act, the Company Issuers will make available at its their expense, upon reasonable request, to any holder of such Securities Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then Issuers are subject to Section 13 or 15(d) of the Exchange Act.
(kj) The Issuers will use all their respective reasonable best efforts to (i) permit the Securities Notes to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Securities Notes to be eligible for ------------- clearance and settlement through The Depository Trust Company.
(lk) In connection with Securities Notes offered and sold in an off-off shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers and the Guarantors covenants and agrees with the each Initial Purchasers thatPurchaser as follows:
(a) The Issuers will To furnish to you in New York City, without charge, as promptly as practicable following the Time of Sale and in any event not amend later than the second business day following the date hereof and during the period mentioned in Section 6(d) or supplement (e), as many copies of the Time of Sale Memorandum, the Final Memorandum and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or any amendment supplementing the Preliminary Memorandum, the Time of Sale Memorandum or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished Final Memorandum, to furnish to you a copy for a reasonable period of time prior to the each such proposed amendment or supplement and as not to use any such proposed amendment or supplement to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request you reasonably object promptly after receipt of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectnotice thereof.
(c) IfTo furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, at any time prior used by, or referred to the completion of the sale of Securities by the Initial Purchasers, Issuers and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object promptly after receipt of notice thereof.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event occurs shall occur or information becomes known condition exist as a result of which it is necessary to amend or supplement the Final Time of Sale 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 under which they were made, not misleadingmisleading or if, in the judgment of the Representative or if counsel for any other reason the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, promptly to prepare and furnish, at its own expense, to the Initial Purchasers and to any time dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances under which they were made, when delivered to a Subsequent Purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or if, in the judgment of the Representative or counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify forthwith to prepare and furnish, at its own expense, to the Initial Purchasers thereof and will preparePurchasers, at the expense of the Company, an amendment either amendments or supplement supplements to the Final Memorandum so that corrects such statement the statements in the Final Memorandum as so amended or omission supplemented will not, in the light of the circumstances under which they were made, when delivered to a Subsequent Purchaser, be misleading or effects such complianceso that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(di) The Issuers will, without charge, provide To use commercially reasonable efforts to the Initial Purchasers and qualify or register (or to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum obtain exemptions from qualifying or registering) all or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale part of the Securities as set forth for offer and sale under "Use the securities laws of Proceeds" the several states of the United States, the provinces of Canada or any other jurisdiction requested by the Initial Purchasers, and to comply with such laws and to continue such qualifications, registrations and exemptions in the Final Memorandum.
(f) For effect so long as any required for the distribution of the Securities remain outstanding, and (ii) to advise the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities andfor offering, as soon as available, copies sale or trading in any jurisdiction or any initiation or threat of any reports proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or financial statements furnished exemption, to or filed by use its best efforts to obtain the Issuers with withdrawal thereof at the Commission or any national or international securities exchange on which any class of securities earliest possible moment; provided, however, that in connection therewith, none of the Issuers may or the Guarantor shall be listedrequired to qualify as a foreign limited partnership, limited liability company or corporation in any jurisdiction where it is not now so qualified or to file a general consent to service of process or subject itself to taxation in any jurisdiction where it is not now so subject.
(g) Prior Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the Closing Dateperformance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Issuers’ counsel and the Issuers’ accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation, printing, filing, shipping and distribution of the Preliminary Memorandum, the Company will furnish Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication and any amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, (ii) all costs and expenses related to the issue and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as soon as they have been preparedprovided in Section 6(f). hereof, a copy including filing fees (but excluding fees and disbursements of counsel for the Initial Purchasers) in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) any fees charged by rating agencies for the rating of the Notes or the Exchange Securities, (v) the costs and charges of the Trustee, (vi) the cost of the preparation, issuance and delivery of the Securities, (vii) the costs and expenses of the Issuers relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any unaudited interim financial statements electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company for Issuers, travel and lodging expenses of the representatives and officers of the Issuers and any period subsequent such consultants, and the cost of any aircraft chartered in connection with the road show and (viii) all other cost and expenses incident to the period covered performance of the obligations of the Issuers hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 11, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by the most recent financial statements appearing in the Final Memorandumthem and any advertising expenses connected with any offers they may make.
(h) None of the Issuers nor or any of its affiliates that it controls will, and the Issuers will use their Affiliates will commercially reasonable efforts to cause their other affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "“security" ” (as defined in the Act) that could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None The Issuers will not, and will not permit any of their subsidiaries or their respective affiliates that they control or persons acting on their behalf to, and the Issuers will use their commercially reasonable efforts to cause their other affiliates not to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any During the period of two years after the Closing Date, the Partnership and its subsidiaries will not be, nor will it 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 Securities remain outstanding, the Investment Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers None of the Issuers, their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will use all reasonable engage in any directed selling efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as that term is defined in Regulation S) with respect to Securities sold pursuant to Regulation S, and the Issuers and their respective Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(l) Prior to the time at which the Exchange Securities are issued, the Issuers will not, and not register permit any transfer of such their affiliates (as defined in Rule 144 under the Securities not made Act) to resell any of the Securities that have been reacquired by any of them other than pursuant to an effective registration statement under the Securities Act or in accordance with Rule 144 under the provisions Securities Act.
(m) To apply the net proceeds from the sale of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form manner described under the caption “Use of definitive securitiesProceeds” in the Time of Sale Memorandum and the Final Memorandum.
(n) During the period of 90 days following the date hereof, the Partnership will not and will not permit any of its subsidiaries to, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC (which consent may be withheld at the sole discretion of Xxxxxx Xxxxxxx & Co. LLC), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Partnership or any subsidiary of the Partnership or securities exchangeable for or convertible into debt securities of the Partnership or any subsidiary of the Partnership (other than as contemplated by this Agreement and to register the Exchange Securities).
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants and ------------------------ agrees with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consentreasonably objected within two business days after being provided a copy of such amendment or supplement, which consent shall not be unreasonably withheldunless in the opinion of counsel to the Issuers such amendment or supplement is required by law. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, -------- however, that in connection therewith, none of the Issuers shall be required to ------- qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited consolidated interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(hf) None of the Issuers nor Company or any of their its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(ig) None The Issuers will not, and will not permit any of the Issuers will Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering of the Securities within the meaning of Section 4(2) of the Act.
(jh) For so long as any of the Securities remain outstandingoutstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ki) The Issuers will use all reasonable their respective best efforts to (i) permit the Securities to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal ------ Market") and (ii) permit the Securities to be eligible for clearance and ------ settlement through The Depository Trust Company.
(lj) In connection with Securities offered and sold in an off-shore offshore transaction (as defined in Regulation S) the Issuers will comply with the provisions of Regulation S, including the prohibition on directed selling efforts, will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(k) The Company shall apply the net proceeds from the sale of the Notes, the sale of the Convertible Subordinated Notes and borrowings under the Credit Agreement to the purchase of its Common Stock pursuant to the Tender Offer and take all other steps as are reasonably necessary to consummate the Tender Offer, in each case as soon as is reasonably practicable after the Issue Date.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants and agrees with the Initial Purchasers Purchaser that:
(a) The Each of the Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers Purchaser shall not have given their its consent, which consent shall not be unreasonably withheld. The Each of the Issuers will promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for the Initial PurchasersPurchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial PurchasersPurchaser.
(b) The Each of the Issuers will cooperate with the Initial Purchasers Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none each of the Issuers shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchaser of the Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers Company will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers Purchaser may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) In accordance with the terms of the Indenture, the Initial Purchaser and the Trustee shall have received each of the following documents which shall be satisfactory in form and substance to the Initial Purchaser, the Trustee and each of their respective counsel with respect to the Mortgaged Property (as defined in the Indenture):
A. one or more Mortgages (as defined in the Indenture), duly executed and acknowledged by the owner or holder of the fee interest constituting the Mortgaged Property, in form for recording in the appropriate recording office of the political subdivision where the Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof and such UCC-1 financing statements and other similar statements as are contemplated in respect of the Mortgage(s) by the local counsel opinion referred to in subparagraph L. below, and any other instruments necessary to grant the interests purported to be granted by the Mortgage(s) under the laws of any applicable jurisdiction, which Mortgage(s) and financing statements and other instruments shall be effective to create a lien on the Mortgaged Property in favor of the Trustee, subject to no liens other than liens permitted to be outstanding pursuant to the Mortgage or permitted to be pari passu pursuant to Article 10 of the Indenture;
B. such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall be necessary in order for the owner or holder of the fee interest to grant the lien contemplated by the Mortgage with respect to the Mortgaged Property;
C. with respect to the Mortgage, a policy of title insurance (or commitment to issue such a policy) insuring (or committing to insure) the lien of the Mortgage as a valid mortgage lien on the real property and fixtures described therein with the priority contemplated in Article 10 of the Indenture in respect of the Securities in an amount not less than 100% of the fair market value thereof which policy (or commitment) shall (a) be issued by a title company reasonably acceptable to the Initial Purchaser, (b) include such reinsurance arrangements (with provisions for direct access) as shall be acceptable to the Initial Purchaser, (c) have been supplemented by such endorsements, or, where such endorsements are not available at commercially reasonable premium costs, opinion letters of special counsel, architects or other professionals, which counsel, architects or other professionals shall be acceptable to the Initial Purchaser, as shall be requested by the Initial Purchaser (including, without limitation, endorsements or opinion letters on matters relating to usury, first loss, zoning, non-imputation, public road access, contiguity (where appropriate), cluster, survey, variable rate and so-called comprehensive coverage over covenants and restrictions) and (d) contain only such exceptions to title as shall be agreed to by the Initial Purchaser in accordance with the terms of the Indenture with respect to the Mortgaged Property;
D. a survey of the Mortgaged Property complying with the minimum detail requirements of the American Land Title Association (as such requirements are in effect on the date of delivery of such survey) certified to the Trustee and dated (or redated) not earlier than six months prior to the date of delivery thereof, unless there shall have occurred any exterior change in the property affected thereby during such period, in which event such survey shall be dated or redated to a date after the completion of such change, which survey shall locate all improvements, public streets and recorded easements affecting the Mortgaged Property;
E. policies or certificates of insurance as required by the Mortgage, which policies or certificates shall bear mortgagee endorsements of the character required by the Mortgage;
F. UCC, judgment and tax lien searches confirming that the personal property comprising a part of the Mortgaged Property is subject to no liens other than Prior Liens (as defined in the Mortgage);
G. such affidavits, certificates and instruments of indemnification as shall be required to induce the title company to issue the policy or policies (or commitment) contemplated in subparagraph (C) above;
H. checks payable to the appropriate public officials in payment of all recording costs and transfer taxes (or checks or wire transfers to the title insurance company in respect of such amounts) due in respect of the execution, delivery or recording of the Mortgage, together with a check or wire transfer for the title insurance company in payment of its premium, search and examination charges, survey costs and any other amounts due in connection with the issuance of its policies (or commitments);
I. copies of all Leases (as defined in the Mortgage), all of which Leases shall be satisfactory to the Initial Purchaser;
J. a certificate of an officer of the Company certifying that, as of the date of delivery of such certificate, there is not outstanding any citation, violation or similar notice indicating that such real property contains conditions which are not in compliance with local codes or ordinances relating to building or fire safety or structural soundness (other than any provisions of such codes or ordinances the validity or applicability of which is being contested in good faith by appropriate proceedings diligently prosecuted and as to which enforcement proceedings have not been instituted or, if instituted, have been stayed);
K. a certificate of the Company, signed on behalf of the Issuers by its Chairman of the Board, Chief Executive Officer, President, any Vice President or any General Manager and the Chief Financial Officer or Finance Manager, to the effect that: (i) the Company has performed all covenants and agreements described in this Section 5(f) and satisfied all conditions on its part to be performed or satisfied hereunder and (ii) upon the execution of the Collateral Documents (as defined in the Indenture), and, with respect to Collateral (as defined in the Indenture), filings under the UCC in all required jurisdictions and recording of the Mortgages in the appropriate recording offices, the holders of Securities will have a valid and perfected lien on the Collateral with the priority contemplated in Article 10 of the Indenture subject to no other lien, charge, encumbrance or interest (other than as permitted by each Collateral Document); and
L. an opinion from local Missouri counsel that shall be satisfactory to the Initial Purchaser and, among other things, shall opine that when each of the Mortgages have been duly and validly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the other parties thereto), they will be the legally valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (iii) any limitation on a waiver of rights under any usury laws.
M. An opinion (satisfactory to Initial Purchaser and its counsel) of Cadwalader, Xxxxxxxxxx & Xxxx or Missouri counsel to the Company to the effect that the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Mortgages for all Mortgaged Property and any ancillary collateral documents, certificates or agreements to which it is a party and that each of the Mortgages have been duly and validly authorized, executed and delivered by the Company.
(g) For so long as any of the Securities Notes remain outstanding, the Issuers will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(gh) Prior to the Closing Date, each of the Company Issuers will furnish to the Initial PurchasersPurchaser, as soon as they have been prepared, a copy of any unaudited interim financial statements statements, if any, of each of the Company Issuers, as applicable, for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(hi) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(ij) None Each of the Issuers will not, and will not permit any of their Affiliates to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.)
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants and agrees with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities or the Private Exchange Securities (if applicable), any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by any of the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will, and will not permit its Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company Issuers will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-off shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants and agrees covenant with the Initial Purchasers thatas follows:
(a) The Issuers will not amend or supplement furnish to the Initial Purchasers and counsel for the Initial Purchasers, without charge, such number of copies of the Preliminary Offering Memorandum and the Final Offering Memorandum and any amendments or supplements thereto as the Initial Purchasers and their counsel may reasonably request.
(b) The Issuers will not at any time make any amendment or supplement thereto to the Preliminary Offering Memorandum or the Offering Memorandum without the prior written consent of the Initial Purchasers, which consent will not be unreasonably withheld or delayed. Neither the consent of the Initial Purchasers, nor the Initial Purchasers' delivery of any such amendment or supplement, shall, in and of itself, constitute a waiver of any of the conditions set forth in Section 7 hereof.
(c) The Company will immediately notify each Initial Purchaser and confirm such notice in writing of (x) any filing made by any Issuer relating to the offering of the Securities with any securities exchange or any other regulatory body in the United States or any other jurisdiction and (y) prior to the completion of the placement of the Securities by the Initial Purchasers shall as evidenced by a notice in writing from the Initial Purchasers to the Company, any material changes in or affecting the earnings, business affairs or business prospects of the Company and its Subsidiaries which (i) make any statement in the Offering Memorandum materially false or misleading or (ii) are not previously have been advised disclosed in the Offering Memorandum and furnished a copy for a reasonable period of are required to be so disclosed. In such event or if at any time prior to completion of the proposed amendment or supplement and as to which placement of the Securities by the Initial Purchasers to purchasers who are not its affiliates (as determined by the Initial Purchasers) any other event shall not have given their consentoccur or condition shall exist as a result of which it is reasonably necessary, which consent shall not be unreasonably withheld. The Issuers will promptlyin the opinion of the Company, upon counsel for the reasonable request of Company, the Initial Purchasers or counsel for the Initial Purchasers, make any amendments to amend or supplements to supplement the Preliminary Offering Memorandum or in order that the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; providedOffering Memorandum, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities by the Initial Purchasers, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would supplemented, will not include any an untrue statement of a material fact, fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleading, misleading or if in the opinion of the Company, counsel for any other reason it the Company, the Initial Purchasers or counsel for the Initial Purchasers, such amendment or supplement is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will Issuers will, subject to paragraph (b) of this Section 5, promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Companytheir own expense, an such amendment or supplement as may be necessary to the Final Memorandum that corrects correct such untrue statement or omission or effects to effect such compliance.
compliance (d) The Issuers will, without charge, provide in form and substance reasonably satisfactory to the Representative and counsel to the Initial Purchasers and whose consent thereto shall not be unreasonably withheld or delayed), so that as so amended or supplemented, the statements in the Offering Memorandum will not include an untrue statement of a material fact or omit to counsel for state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or so that such Offering Memorandum as so amended or supplemented will comply with applicable law, as the case may be, and furnish to the Initial Purchasers as many such number of copies of the Preliminary Memorandum and the Final Memorandum or any such amendment or supplement thereto as the Initial Purchasers may reasonably request. Each of the Issuers agrees to notify the Initial Purchasers in writing to suspend use of the Offering Memorandum as promptly as practicable after the occurrence of an event specified in this paragraph (c), and the Initial Purchasers hereby agree upon receipt of such notice from the Issuers to suspend use of the Offering Memorandum until the Issuers have amended or supplemented the Offering Memorandum to correct such misstatement or omission or to effect such compliance.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(hd) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" affiliates (as defined in the ActRule 501(b) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of ("Affiliates")) will solicit any offer to buy or offer to sell the Securities.
(i) None , the Exchange Securities or the Private Exchange Securities, if any, by means of the Issuers will engage in any form of general solicitation or general advertising (as those such terms are used in Regulation D under the Act), or by means of any directed selling efforts (as defined in Rule 902 under the Act) in the United States in connection with the offering of the Securities being offered and sold pursuant to Regulation S or in any manner involving a public offering (within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.of
Appears in 1 contract
Covenants of the Issuers. Each In further consideration of the Issuers covenants agreements of the Underwriter herein contained, the Company and agrees the Trust jointly and severally covenant with the Initial Purchasers thatUnderwriter as follows:
(a) The Issuers will not amend or supplement To furnish the Final Memorandum or any amendment or supplement thereto Underwriter, without charge, [two] signed copies of which the Initial Purchasers shall not previously have been advised Registration Statement (including exhibits thereto) and furnished a copy for a reasonable period of time to furnish the Underwriter in New York City, without charge, prior to 10:00 a.m. New York City time on the proposed amendment or supplement business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c) below, as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request many copies of the Initial Purchasers Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or Registration Statement as the Final Memorandum that Underwriter may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersreasonably request.
(b) The Issuers will cooperate with Before amending or supplementing the Initial Purchasers in arranging for Registration Statement or the qualification Prospectus, to furnish to the Underwriter a copy of each such proposed amendment or supplement and, except to the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary extent otherwise required by law, not to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in file any such jurisdiction where it is not then so subjectproposed amendment or supplement to which the Underwriter reasonably objects.
(c) If, at any time prior to during such period after the completion first date of the sale public offering of the Preferred Securities as in the opinion of counsel for the Underwriter the Prospectus is required by the Initial Purchaserslaw to be delivered in connection with sales by an Underwriter or dealer, any event occurs shall occur or information becomes known condition exist as a result of which it is necessary to amend or supplement the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary Prospectus in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, not misleading, or if if, in the opinion of counsel for any other reason the Underwriter, it is necessary at any time to amend or supplement the Final Memorandum Prospectus to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will forthwith to prepare, file with the Commission and furnish, at its own expense, to the expense Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Preferred Securities may have been sold by the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the Companycircumstances when the Prospectus is delivered to a purchaser, an amendment be misleading or supplement to so that the Final Memorandum that corrects such statement Prospectus, as amended or omission or effects such compliancesupplemented, will comply with law.
(d) The Issuers will, without charge, provide To endeavor to qualify the Initial Purchasers Preferred Securities for offer and to counsel for sale under the Initial Purchasers as many copies securities or Blue Sky laws of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto such jurisdictions as the Initial Purchasers may Underwriter shall reasonably request.
(e) The Issuers will apply During the net proceeds from period when the sale Prospectus is required to be delivered under the Securities Act, to file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 and 15 of the Securities as set forth under "Use of Proceeds" in Exchange Act subsequent to the Final Memorandumtime the Registration Statement becomes effective.
(f) For so long To make generally available to the Trust’s security holders and to the Underwriter as any soon as practicable an earning statement of the Company covering a twelve month period beginning on the first day of the first full fiscal quarter after the date of this Agreement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports Act and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by of the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.Commission
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants The Great Wolf Parties covenant and agrees agree with the each Initial Purchasers thatPurchaser as follows:
(a) The Issuers Until the last to occur of (i) the completion of the distribution of the Securities by the Initial Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing Date, the Great Wolf Parties will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any amendment written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or supplement thereto a solicitation of which an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment amendment, supplement or supplement report and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheldreasonably objected in a timely manner. The Issuers Great Wolf Parties will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers Great Wolf Parties will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "“Blue Sky" ” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall not be required to qualify as a foreign corporation corporations (or otherwise) or to execute a general consent consents to service of process in any jurisdiction or subject itself themselves to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c1) If, at any time prior to the latest of (i) the completion of the sale of Securities by the Initial PurchasersPurchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyGreat Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliancecompliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Great Wolf Parties will promptly notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (a) above, furnish to the Initial Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum) as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented will comply with applicable law.
(d) The Issuers Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum Pricing Disclosure Package, any Issuer Written Communication and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "“Use of Proceeds" ” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, but only so long as the Issuers are subject to the covenant in the Indenture to provide reports to the Trustee or to the holders of the Securities, the Great Wolf Parties will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers any Great Wolf Party to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers any Great Wolf Party with the Commission or any national or international securities exchange on which any class of securities of the Issuers any Great Wolf Party may be listed; provided that the foregoing obligation shall not apply to any reports or other communication (including financial statements) that are made available on the Commission’s XXXXX database).
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor Great Wolf Group Members or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "“security" ” (as defined in the Act) that could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(ih) None of The Parent Guarantors and the Issuers will not, and will not permit any of the Subsidiaries or their respective Affiliates or persons acting on their behalf to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(ji) For so long as any of the Securities remain outstandingoutstanding and the Issuers are required pursuant to the provisions of the Indenture to furnish to any holder of the Securities, securities analysts or their prospective investors the information required to be delivered pursuant to Rule 144A(d)(4), the Company Issuers will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(kj) The Issuers Great Wolf Parties will use all commercially reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc., no Great Wolf Group Member will directly or indirectly offer, sell, contract to sell or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by any Issuer or any of their respective Affiliates or any person in privity with the Issuers or any Affiliate of the Issuers), except as provided hereunder, any securities of any Great Wolf Group Member (or guaranteed by any Great Wolf Group Member) that are substantially similar to the Securities.
(l) In connection with Securities offered and sold in an off-off shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(m) None of the Great Wolf Group Members or any of their Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities.
(n) For a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under the Act) following the date any Securities are acquired by the Issuers or any of their Affiliates, none of the Issuers or any of their Affiliates will sell any such Securities, unless (i) such Securities are sold pursuant to a registration statement which is effective under the Act, or (ii) in the written opinion of reputable counsel, the buyer of such Securities is not acquiring “restricted securities” under Rule 144.
(o) Each Great Wolf Party shall use commercially reasonable efforts to cause the Securities to be secured by first priority liens on the Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Package.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees with the Initial Purchasers thatagree as follows:
(a) The If and to the extent the Remarketed Notes are required (in the view of counsel, which need not be in the form of a written opinion, for either the Remarketing Agent or the Issuers) to be registered under the Securities Act as in effect at the time of the Remarketing, the Issuers will not amend or supplement shall:
(i) prepare the Final Memorandum or Registration Statement and the Prospectus, in a form approved by the Remarketing Agent, file any amendment or supplement thereto of which such Prospectus pursuant to the Initial Purchasers shall not previously have been advised Securities Act within the period required by the Securities Act and furnished a copy for a the rules and regulations thereunder and use commercially reasonable period of time efforts to cause the Registration Statement to be declared effective by the Commission prior to the proposed second Business Day immediately preceding the applicable Remarketing Date;
(ii) file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement and as to which the Initial Purchasers shall not have given their consentProspectus that may, which consent shall not be unreasonably withheld. The Issuers will promptly, upon in the reasonable request judgment of the Initial Purchasers Issuers or counsel for the Initial PurchasersRemarketing Agent, make be required by the Securities Act or requested by the Commission;
(iii) advise the Remarketing Agent, promptly after it receives notice thereof, of the time when any amendments or supplements amendment to the Preliminary Memorandum Registration Statement has been filed or becomes effective or any supplement to the Final Memorandum that may Prospectus or any amended Prospectus has been filed and to furnish the Remarketing Agent with copies thereof;
(iv) file promptly all reports and any definitive proxy or information statements required to be necessary filed by the Issuers with the Commission pursuant to Section 13(a), 13(c), 14 or advisable 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a Prospectus is required in connection with the resale offering or sale of the Securities Remarketed Notes;
(v) file all Issuer Free Writing Prospectuses required to be filed by the Initial Purchasers.Issuers with the Commission pursuant to Rule 433(d) under the Securities Act;
(vi) advise the Remarketing Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, of the suspension of the qualification of any of the Remarketed Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information, and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or any Prospectus or suspending any such qualification, to use promptly every reasonable effort to obtain its withdrawal;
(vii) furnish promptly to the Remarketing Agent such copies of the following documents as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering Preliminary Prospectus and sale under the securities any amended or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securitiessupplemented Preliminary Prospectus; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) Ifthe Prospectus and any amended or supplemented Prospectus; and (d) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time prior when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the completion of Securities Act) is required in connection with the sale of Securities by the Initial PurchasersRemarketing, any event occurs or information becomes known shall have occurred as a result of which the Final Memorandum Prospectus as then amended or supplemented would include any untrue statement of a material fact, fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or if for any other reason it is shall be necessary at any time during such same period to amend or supplement the Final Memorandum Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, the Company will promptly to notify the Initial Purchasers thereof Remarketing Agent and, upon its request, to file such document and will prepare, at the expense of the Company, an amendment or supplement to prepare and furnish without charge to the Final Memorandum Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that corrects will correct such statement or omission or effects effect such compliance;
(viii) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(ix) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make “generally available to its security holders” an “earnings statement” of the Issuers complying with (which need not be audited) Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Issuers, Rule 158 under the Securities Act). The terms “generally available to its security holders” and “earnings statement” shall have the meanings set forth in Rule 158; and
(x) take such action as the Remarketing Agent may reasonably request in order to qualify the Remarketed Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Remarketing Agent may reasonably request; provided that in no event shall the Issuers be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(b) The Company shall pay: (i) the costs incident to the preparation and printing of the Registration Statement, if any, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the costs of distributing the Registration Statement, if any, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (iii) the cost of printing, word-processing or reproducing this Agreement and any documents in connection with the offering, purchase, sale and delivery of the Remarketed Notes; (iv) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the several jurisdictions as provided in Section 5(a)(x) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including any related reasonable fees and expenses of counsel to the Remarketing Agent); (v) any filing fees incident to any required review and clearance by the Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Remarketed Notes; (vi) all other costs and expenses incident to the performance of the obligations of the Issuers hereunder and the Remarketing Agent hereunder; and (vii) the reasonable fees and expenses of counsel to the Remarketing Agent in connection with its duties hereunder.
(c) The Issuers shall furnish the Remarketing Agent with such information and documents as the Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information that parties would customarily require in connection with a due diligence investigation conducted in accordance with applicable securities laws and to cause the Issuers’ officers, directors, employees and accountants to participate in all such discussions and to supply all such information reasonably requested by any such Person in connection with such investigation.
(d) The At the written request of the Remarketing Agent, between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuers willwill not, without chargethe prior written consent of the Remarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), provide directly or indirectly, sell, offer, contract or grant any option to sell, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Issuers similar to the Initial Purchasers and Remarketed Notes or securities exchangeable for or convertible into debt securities similar to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably requestRemarketed Notes.
(e) The Issuers will apply the net proceeds from the sale Each of the Securities Company and PPL Funding Capital represents and agrees that, unless it obtains the prior consent of the Remarketing Agent, and the Remarketing Agent represents and agrees that, unless it obtains the prior consent of the Issuers, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as set forth under "Use defined in Rule 405 of Proceeds" the Act, required to be filed with the Commission. Any such free writing prospectus consented to in writing by the Final MemorandumIssuers and the Remarketing Agent is hereinafter referred to as a “Permitted Free Writing Prospectus”. Each of the Company and PPL Funding Capital represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Act, and has complied and will comply with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) For so long as any The Issuers shall prepare a final term sheet relating to the Remarketed Notes, containing only information that describes the final terms of the Securities remain outstanding, Remarketed Notes after providing the Issuers will furnish Remarketing Agent and its legal counsel with a reasonable opportunity to the Initial Purchasers copies of all reports review and other communications comment on such final term sheet (financial or otherwise) furnished such final term sheet to be in form and substance as last reviewed by the Issuers to Remarketing Agent and the Trustee or to the holders of the Securities andIssuers), as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company and will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to file such final term sheet within the period covered required by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2Rule 433(d) of the ActAct following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their its consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities by the Initial Purchasers, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers Company to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any available unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent consolidated financial statements of the Company appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(ig) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with ------------------------ the Initial Purchasers Purchaser that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers Purchaser shall not have given their its consent, which consent shall not be unreasonably withheld. The Issuers will shall, promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for the Initial PurchasersPurchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial PurchasersPurchaser.
(b) The Issuers will shall cooperate with the Initial Purchasers Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers Purchaser may designate and will shall continue such qualifications in effect for as so long as may be necessary to complete the resale of the Securities; provided, however, -------- ------- that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchaser of the Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will Issuers shall promptly notify the Initial Purchasers Purchaser thereof and will shall prepare, at the expense of the Companytheir own expense, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers willshall, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers Purchaser may reasonably request.
(e) The Issuers will shall apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will shall furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will Issuers shall furnish to the Initial PurchasersPurchaser, as soon as they have been preparedprepared by the Company and are available, a copy of any unaudited interim consolidated financial statements of the Company Issuers for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of Neither the Issuers nor any of their respective Affiliates will shall sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(i) None Except as required by the terms of the Registrations Rights Agreement, none of the Issuers will shall engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will Issuers shall make available at its their expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will shall use all reasonable their best efforts to (i) to permit the Securities Notes to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD National Association of Securities Dealers, Inc. relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) to permit the Securities Notes to be eligible for ------------- clearance and settlement through The Depository Trust Company.
(l) In connection with Securities Notes offered and sold in an off-shore offshore transaction (as defined in Regulation S) ), the Issuers Company will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
(m) Prior to the consummation of the Exchange Offer or the effectiveness of an applicable Shelf Registration Statement (as such terms are defined in the Registration Rights Agreement) if, in the reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of its Affiliates is required to deliver a Memorandum in connection with sales of, or market making activities with respect to, the Securities, (A) to periodically amend or supplement the Memorandum so that the information contained in the Memorandum complies with the requirements of Rule 144A of the Act, (B) to amend or supplement the Memorandum when necessary to reflect any material changes in the information provided therein so that the Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing as of the date the Memorandum is so delivered, not misleading and (C) to provide the Initial Purchaser with copies of each such amended or supplemented Memorandum, as the Initial Purchaser may reasonably request. The Issuers hereby expressly acknowledge that the indemnification and contribution provisions of Section 9 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(m).
(n) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(o) Not to distribute prior to the Closing Date any offering material in connection with the offering and sale of the Notes other than the Memorandum.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will prepare the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum in the form approved by the Representatives and will not amend or supplement the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum or any amendment or supplement thereto of which without first furnishing to the Initial Purchasers shall not previously have been advised and furnished Representatives a copy for a reasonable period of time prior to the such proposed amendment or supplement and as will not use any amendment or supplement to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that Representatives may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersobject.
(b) The Issuers will cooperate with furnish to the Initial Purchasers in arranging and to Counsel for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate concurrently with the Time of Sale and will continue such qualifications during the period referred to in effect for paragraph (c) below, without charge, as long as may be necessary to complete the resale many copies of the Securities; provided, however, that in connection therewith, none of Preliminary Memorandum and the Issuers shall be required to qualify Offering Memorandum and any amendments and supplements thereto as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectthey reasonably may request.
(c) IfBefore making, at preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Partnership will furnish to the Representatives and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(d) At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known condition exists as a result of which the Final Preliminary Memorandum or the Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Final Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Company Issuers will promptly (i) notify the Initial Purchasers thereof of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Companytheir own expense, an amendment or supplement to the Final Preliminary Memorandum or the Offering Memorandum, so that corrects such statement the statements in the Preliminary Memorandum or omission the Offering Memorandum as so amended or effects such compliance.
supplemented will not, in the light of the circumstances when the Preliminary Memorandum or the Offering Memorandum is delivered to a purchaser, be misleading or so that the Preliminary Memorandum or the Offering Memorandum, as amended or supplemented, will comply with applicable law; and (diii) The Issuers will, without charge, provide supply any supplemented or amended Preliminary Memorandum or Offering Memorandum to the Initial Purchasers and to counsel Counsel for the Initial Purchasers Purchasers, without charge, in such quantities as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may be reasonably requestrequested.
(e) The Issuers will apply (i) cooperate with the net proceeds from Initial Purchasers to qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives may designate and (ii) maintain such qualifications for so long as required for the sale of the Securities Notes by the Initial Purchasers. The Issuers will promptly advise the Initial Purchasers of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. None of the Issuers or any of the Guarantors shall be required to qualify as set forth under "Use a foreign corporation or other entity or to take any action that would subject it to general service of Proceeds" process in the Final Memorandumany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or other entity.
(f) For so long as At any time prior to the completion of the Securities remain outstandingdistribution of the Notes by the Initial Purchasers, the Issuers will furnish deliver to the Initial Purchasers copies such additional information concerning the business and financial condition of all reports the Issuers and other communications the Guarantors as the Initial Purchasers may from time to time request and whenever it or any of its subsidiaries publishes or makes available to the public (financial by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) furnished by any information that would reasonably be expected to be material in the Issuers context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the Trustee nature of such information or to event. The Issuers will likewise notify the holders Initial Purchasers of (i) any decrease in the rating of the Notes or any other debt securities of an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities andAct) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, as soon as available, copies the Issuers become aware of any reports such decrease, notice or financial statements furnished to or filed by the public announcement. The Issuers with the Commission or any national or international securities exchange on which any class will also, for a period of securities of the Issuers may be listed.
(g) Prior to three years from the Closing Date, the Company will furnish deliver to the Initial Purchasers, as soon as they available and without request, copies of any reports and financial statements furnished to or filed with the Commission or required to be delivered to the Trustee or holders of the Notes pursuant to the Indenture or otherwise; provided, however, that if such reports or financial statements are publically available on the Commission's XXXXX database, delivery to the Initial Purchasers shall not be required.
(g) During the period of one year after the Closing Date, the Issuers will not, and will not permit any of their Affiliates to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been preparedacquired by any of them, a copy of any unaudited interim financial statements of other than pursuant to an effective registration statement under the Company for any period subsequent to Securities Act or in accordance with Rule 144 under the period covered by the most recent financial statements appearing in the Final MemorandumSecurities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(i) None of the Issuers nor or any of their Affiliates Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(j) None the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(k) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale securities of the Securities same or a similar class as the Notes, other than the Notes offered or sold to the Initial Purchasers hereunder, in a manner that which would require the registration under the Securities Act of the SecuritiesNotes.
(il) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so So long as any of the Securities remain outstanding, Notes are “restricted securities” within the Company will make available at its expense, upon request, to any holder meaning of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Securities Act, unless at any time that the Company is Issuers are not then subject to Section 13 or 15(d) of the Exchange Act, the Issuers will provide at their expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(km) The Issuers will use all reasonable efforts apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and the Offering Memorandum.
(n) Until completion of the distribution, neither the Issuers nor any of their Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(o) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE NOTES AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market PURSUANT TO CLAUSE (the "Portal Market"D) and PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyIN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER OR AN ISSUER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(lp) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the The Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities of an Issuer substantially similar to the provisions Notes (other than the Notes offered pursuant to this Agreement) for a period of 60 days after the date hereof, without the prior written consent of Xxxxx Fargo Securities, LLC.
(q) The Issuers will, promptly after they have notified the Representatives of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation SSection 1.6011-4), if applicable, issue deliver a duly completed copy of IRS Form 8886 or any such Securities successor form to the Representatives.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the form capacity of definitive securitiesan arm's length contractual counterparty to the Issuers and the Guarantors with respect to the offering of the Notes and the Guarantees contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers or any other person. Additionally, no Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuers or Guarantors with respect thereto. Any review by the Initial Purchasers of the Issuers or the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Issuers or the Guarantors.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers Issuers, jointly and severally, covenants and agrees with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, consent (which consent shall not be unreasonably withheld). The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial PurchasersPurchasers for such Memorandum not to contain any untrue statement of a material fact or omission of a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or to comply with applicable laws, rules or regulations.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale re- sale of the Securities; providedPROVIDED, howeverHOWEVER, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities or the Private Exchange Securities, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Companytheir expense, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers Company to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period pe- riod covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of Neither the Issuers nor any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration under the Act of the Securities.
(i) None The Issuers will not, and will not permit any of the Issuers will Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company Issuers will make available at its their expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal MarketPORTAL MARKET") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore offshore transaction (as defined in Regulation S) the Issuers Company will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(m) None of the Company or the Subsidiaries will take any action prohibited by Regulation M under the Exchange Act (or any successor provision), in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Covenants of the Issuers. Each The Issuers covenant and agree with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for to the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Skyblue sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of the Issuers shall not be required to qualify as a foreign corporation corporation, to take any acts which would require it to qualify to do business or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Notes, the Exchange Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities Notes and, as soon as promptly after available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing DateTime of Purchase, the Company will furnish to the Initial Purchasers, as soon as they have been preparedprepared in final form, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None of the The Issuers will engage in not solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities Notes remain outstandingoutstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and not saleable in full under Rule 144 under the Act (or any successor provision), the Company Issuers will make available at its expenseavailable, upon request, to any holder seller of such Securities and any prospective purchasers thereof Notes the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities Notes to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") included for quotation on PORTAL and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) The Issuers, Holdings and Communications (to the extent a party thereto) will do and perform all things required to be done and performed by them under this Agreement and the other Basic Documents prior to or after the Closing, subject to the qualifications and limitations in the writing that expresses such obligations, and to satisfy all conditions precedent on their part to the obligations of the Initial Purchasers under this Agreement to purchase and accept delivery of the Notes.
(m) In connection with Securities Notes offered and sold in an off-shore offshore transaction (as defined in Regulation S) ), the Issuers will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (TWP Capital Corp Ii)
Covenants of the Issuers. Each of the Issuers Issuer and Guarantor covenants and agrees ------------------------ with the Initial Purchasers thatyou as follows:
(a) As promptly as practicable after the date hereof, the Issuers agree to prepare the Offering Memorandum. The Issuers will not amend or supplement the Final shall use their commercially reasonable best efforts to deliver such Offering Memorandum or any amendment or supplement thereto of which to the Initial Purchasers by 9:00 a.m., New York City time, on May 14, 2002, and in no event shall not previously have been advised and furnished a copy for a reasonable period of time such Offering Memorandum be delivered later than three business days prior to the proposed amendment or supplement and Closing Date (such date of delivery being herein referred to as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers"Delivery Date").
(b) The Issuers Each Issuer and Guarantor will cooperate with the Initial Purchasers in arranging for endeavoring to qualify the qualification of the Offered Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate reasonably have designated in writing and will continue make such qualifications in effect for as long applications, file such documents, and furnish such information as may be necessary to complete the resale of the Securities; reasonably required for that purpose, provided, however, that in connection therewith, none of the Issuers no Issuer or Guarantor shall -------- be required to qualify as a foreign corporation or to execute file a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subjectqualified or required to file such a consent. The Issuers and Guarantors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Initial Purchasers may reasonably request for distribution of the Offered Securities.
(c) If, at At any time prior to the completion of the sale distribution of the Offered Securities by the Initial PurchasersPurchasers to purchasers who are not affiliates thereof, the Issuers will give the Initial Purchasers notice of their intention to prepare any supplement or amendment to the Offering Memorandum, will furnish the Initial Purchasers with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, and will not use any such amendment or supplement to which the Initial Purchasers or counsel for the Initial Purchasers shall reasonably object within five days of being furnished a copy thereof.
(d) The Issuers will furnish to the Initial Purchasers such number of copies of the Offering Memorandum (as amended or supplemented) as the Initial Purchasers may reasonably request.
(e) At any time prior to the completion of the distribution of the Offered Securities by the Initial Purchasers to purchasers who are not affiliates thereof, the Issuers will advise you promptly and, if requested by you, confirm such advice in writing, of the happening of any event that makes any statement of a material fact made in the Offering Memorandum (as amended or supplemented from time to time) untrue or which requires the making of any addition to or change in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, during the period specified in the first sentence of this paragraph, any event occurs or information becomes known shall occur as a result of which it is necessary, in the Final reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Offering Memorandum in order to make the Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Issuers will forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers) so that, as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact, fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to the purchaser, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers a reasonable number of copies of all reports and other communications such amendment or supplement.
(financial or otherwisef) furnished At any time prior to completion of the distribution of the Offered Securities by the Issuers Initial Purchasers to the Trustee or to the holders purchasers who are not affiliates thereof, Sun International and each of the Securities andits subsidiaries will, as soon as availablerequired, copies of any reports or financial statements furnished file promptly all documents required to or be filed by the Issuers with the Commission pursuant to Section 13, 14, or any national or international securities exchange on which any class of securities 15(d) of the Issuers may be listedExchange Act.
(g) Prior to the Closing DateNone of Sun International, SINA, the Company Guarantors or their subsidiaries will furnish solicit any offer to buy or offer or sell the Initial Purchasers, as soon as they have been prepared, a copy Offered Securities by means of any unaudited interim financial statements form of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandumgeneral solicitation or general advertising.
(h) None of Sun International, SINA, the Issuers nor Guarantors or their subsidiaries or any affiliate of any of their Affiliates them (as defined in Rule 501(b) of the Act) will selloffer, offer for sale sell or solicit offers to buy or otherwise negotiate in respect of any "security" security (as defined in the Act) that could which will be integrated with the sale of the Offered Securities in a manner that would require the registration of the Offered Securities under the Act of the SecuritiesAct.
(i) None During the period from the Closing Date to two years after the Closing Date, none of Sun International, SINA, the Issuers Guarantors or their subsidiaries will, or will engage in permit any form of general solicitation or general advertising "affiliate" (as those terms are used defined in Regulation D Rule 144 under the Act) in connection with the offering of any of them to, resell any of the Offered Securities that have been reacquired by them, except for Offered Securities purchased by Sun International or its subsidiaries or any of their affiliates and resold in any manner involving a public offering within the meaning of Section 4(2) of transaction registered under the Act.
(j) For Sun International and SINA will, so long as any the Offered Securities are outstanding and are "restricted securities" within the meaning of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Company Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is then not subject to Section 13 or 15(d) of the Exchange Act, make available to holders of the Offered Securities and prospective purchasers of the Offered Securities designated by such holders, upon request of such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Offered Securities.
(k) The Issuers will will, if requested by the Initial Purchasers, use all reasonable their best efforts in cooperation with the Initial Purchasers to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Offered Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection Each of the Offered Securities will bear the legend contained or to be contained in "Notice to Investors" in the Offering Memorandum and upon the other terms stated therein, except after such Securities are resold or exchanged pursuant to a registration statement effective under the Act.
(m) Sun International will, for the shorter of the period the Offered Securities remain outstanding and five years from the Closing Date, deliver to the Initial Purchasers copies of annual reports and copies of all other documents, reports and information furnished by Sun International or any of its subsidiaries to their securityholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act.
(n) The Issuers shall apply the net proceeds of their sale of the Offered Securities offered and sold to the purchase of the Issuers' 9% Senior Subordinated Notes due 2007 (the "9% Notes") tendered in an off-shore transaction (as defined in Regulation S) the tender offer commenced by the Issuers for all of the outstanding 9% Notes on May 8, 2002 (the "Tender Offer") and will redeem any such notes not register any transfer tendered upon completion of such Securities not made the Tender Offer in accordance with the provisions terms of Regulation S the Indenture relating to the 9% Notes, as amended and supplemented.
(o) The Issuers shall not invest or otherwise use the proceeds received by the Issuers from their sale of the Offered Securities in such a manner as would require Sun International or any of its subsidiaries to register as an investment company under the 1940 Act or the rules and regulations thereunder.
(p) For a period of 30 days after the date of this Agreement, except as described in or contemplated by the Offering Memorandum, the Issuers will not, except without your prior written consent (which consent will not be unreasonably or untimely withheld), issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any debt securities of the Issuers or their subsidiaries (other than the Offered Securities or the Exchange Securities) (it being understood that debt incurred under the Existing Credit Agreement, as amended, or any replacement thereof, is not a debt security).
(q) The Issuers and the Guarantors will not claim the benefit of any usury laws against any holders of Offered Securities or Guarantees, respectively.
(r) Each Issuer will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by such Issuer prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
(s) The Issuers will use their commercially reasonable best efforts to cause Arthur Andersen LLP to deliver to the Initial Purchasers not later than the Dxxxxxxy Xxxx xxe letter described in accordance with Section 5(j) addressed to the provisions of Regulation SInitial Purchasers and to deliver to Sun International not later than the Delivery Date the letter described in Section 5(k).
(t) On or prior to the Closing Date, if applicable, issue any such Securities Sun International will cause each Guarantor to execute an amendment to this Agreement in the form of definitive securitiesExhibit 1 hereto, whereby such Guarantor will accede to the terms of this Agreement as a guarantor, and undertake to perform, on a joint and several basis, the obligations of the Issuers and each of the other Guarantors set forth in this Agreement as though such Guarantor had entered into this Agreement on the date hereof.
Appears in 1 contract
Covenants of the Issuers. Each The Issuers and the Guarantor covenant and agree with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for to the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Issuers and the Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Skyblue sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of neither the Issuers nor the Guarantor shall be required to qualify as a foreign corporation corporation, to take any acts which would require it to qualify to do business or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Notes, the Exchange Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or if it for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof (who thereafter will not use such Memorandum until appropriately amended or supplemented) and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, Notes and promptly after available copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing DateTime of Purchase, the Company will furnish to the Initial Purchasers, as soon as they have been preparedprepared in final form, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None of the The Issuers will engage in not solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities Notes remain outstandingoutstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and not saleable in full under Rule 144 under the Act (or any successor provision), the Company Issuers will make available at its expenseavailable, upon request, to any holder seller of such Securities and any prospective purchasers thereof Notes the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities Notes to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") included for quotation on PORTAL and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) The Issuers, Holdings, Communications and the Guarantor (to the extent a party thereto) will do and perform all things required to be done and performed by them under this Agreement and the other Basic Documents prior to or after the Closing, subject to the qualifications and limitations in the writing that expresses such obligations, and to satisfy all conditions precedent on their part to the obligations of the Initial Purchasers under this Agreement to purchase and accept delivery of the Notes.
(m) In connection with Securities Notes offered and sold in an off-shore offshore transaction (as defined in Regulation S) ), the Issuers will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Target Directories of Michigan Inc)
Covenants of the Issuers. Each of the Issuers Issuer [and Guarantor] covenants and agrees with the Initial Purchasers thatUnderwriters as follows:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised Each Issuer [and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers Guarantor] will cooperate with the Initial Purchasers Underwriters in arranging for the qualification of endeavoring to qualify the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers Representatives may designate reasonably have designated in writing and will continue make such qualifications in effect for as long applications, file such documents, and furnish such information as may be necessary to complete the resale of the Securities; providedreasonably required for that purpose, however, provided that in connection therewith, none of the Issuers no Issuer [or Guarantor] shall be required to qualify as a foreign corporation or to execute file a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then now so subjectqualified or required to file such a consent. The Issuers [and Guarantors] will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Securities.
(b) At any time during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, the Issuers will give the Representatives notice of their intention to prepare any supplement to the Prospectus or amendment to the Registration Statement, will furnish the Representatives with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, and will not use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall reasonably object within five days of being furnished a copy thereof. Subject to the foregoing sentence, if filing of the Prospectus is required under Rule 424(b), the Issuers will cause the Prospectus including any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuers will promptly advise the Representatives when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, of any request by the Commission for any amendment to the Registration Statement or amendment or supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. Each of the Issuers will make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain, as soon as possible, the withdrawal thereof.
(c) IfThe Issuers have furnished or will furnish to the Representatives such number of copies of the Prospectus as the Representatives may reasonably request, at and the Issuers hereby consent to the use of such copies for purposes permitted by the Act. The Issuers will furnish to the Representatives, without charge, during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, such number of copies of the Prospectus (as amended or supplemented) as the Representatives may reasonably request. The Prospectus and any time prior amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed via XXXXX, except to the extent permitted by Regulation S-T.
(d) The Issuers will comply with the Act, the Exchange Act, the Act Regulations, and the regulations promulgated under the Exchange Act so as to permit the completion of the sale distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when the Prospectus is required by the Initial PurchasersAct or the Exchange Act to be delivered in connection with sales of the Securities, any event occurs shall occur or information becomes known condition shall exist as a result of which it is necessary, in the Final Memorandum as then amended reasonable opinion of counsel for the Underwriters or supplemented would include any for the Issuers, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact, fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if for any other reason it is necessary shall be necessary, in the reasonable opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Final Memorandum Prospectus in order to comply with applicable lawthe requirements of the Act or the Act Regulations, the Company Issuers will promptly notify prepare and file with the Initial Purchasers thereof and will prepareCommission, at the expense of the Companysubject to Section 4(b), an such amendment or supplement as may be necessary to the Final Memorandum that corrects correct such statement or omission or effects to make the Registration Statement or the Prospectus comply with such compliance.
(d) The requirements, and the Issuers willwill furnish to the Representatives, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many such number of copies of the Preliminary Memorandum and the Final Memorandum or any such amendment or supplement thereto as the Initial Purchasers Representatives may reasonably request.
(e) The Issuers will apply At any time during the net proceeds from period when the sale of Prospectus is required to be delivered under the Securities as set forth under "Use of Proceeds" in Act or the Final Memorandum.
(f) For so long as any of the Securities remain outstandingExchange Act, the Issuers will furnish to the Initial Purchasers copies Company and each of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities andits subsidiaries will, as soon as availablerequired, copies of any reports or financial statements furnished file promptly all documents required to or be filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject pursuant to Section 13 13, 14, or 15(d) of the Exchange Act.
(kf) The Issuers will will, if requested by the Underwriters, use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance cooperation with the rules and regulations adopted by the NASD relating Underwriters to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(lg) In connection The Company will, for the shorter of the period the Securities remain outstanding and five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company or any of its subsidiaries to their securityholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act.
(h) The Issuers shall apply the net proceeds of their sale of the Securities offered as set forth in the Prospectus.
(i) The Issuers shall not invest, or otherwise use the proceeds received by the Issuers from their sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the 1940 Act or the rules and sold regulations thereunder.
(j) Except as described in an off-shore transaction (as defined in Regulation S) or contemplated by the Prospectus, the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except without the prior written consent of the Representatives (which consent will not be unreasonably or untimely withheld), issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any debt securities of the Issuers or their subsidiaries (other than the Securities) (it being understood that debt incurred under the Existing Credit Agreement is not a debt security) until the Business Day set forth on Schedule I hereto.
(k) The Issuers [and the Guarantors] will not claim the benefit of any usury laws against any holders of Securities [or Guarantees, respectively].
(l) The Issuers will timely file such reports pursuant to the Exchange Act as are necessary in accordance with order to make generally available to its securityholders as soon as practicable an earnings statement for the provisions purposes of, and to provide the benefits contemplated by, the last paragraph of Regulation S, if applicable, issue any Section 11(a) of the Act.
(m) Each Issuer will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by such Securities in Issuer prior to the form Closing Date and to satisfy all conditions precedent to the delivery of definitive securitiesthe Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Sun International Hotels LTD)
Covenants of the Issuers. Each The Issuers, jointly and severally, covenant and agree with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or make any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The At any time prior to the completion of the sale of the Notes by the Initial Purchasers (as determined by the Initial Purchasers), the Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers Company will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any two years following the offering of the Securities remain outstandingNotes, the Issuers Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers Company to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company Issuers for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor Company or any of their its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None The Company will not, and will not permit any of the Issuers will Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) or in any directed selling efforts (as such term is defined in teh Securities Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities Notes remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers Company will use all its reasonable efforts to (i) permit the Securities Notes to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD National Association of Securities Dealers, Inc. ("NASD") relating to trading in the NASD's Portal Private Offering Resales and Trading through Automatic Linkages Market (the "Portal Market") and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities Notes offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers Company will not authorize the Trustee to register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
(m) During the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by them, except for Notes purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act.
Appears in 1 contract
Samples: Purchase Agreement (Mobile Mini Inc)
Covenants of the Issuers. Each The Issuers and the Guarantor covenant and agree with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for to the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Issuers and the Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Skyblue sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of neither the Issuers nor the Guarantor shall be required to qualify as a foreign corporation corporation, to take any acts which would require it to qualify to do business or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Notes, the Exchange Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof (who thereafter will not use such Memorandum until appropriately amended or supplemented) and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, Notes and promptly after available copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(ih) None of the The Issuers will engage in not solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.)
Appears in 1 contract
Samples: Securities Purchase Agreement (TWP Capital Corp Ii)
Covenants of the Issuers. Each of the Issuers covenants and agrees covenant with the Initial Purchasers thatas follows:
(a) The Issuers will furnish to the Initial Purchasers and counsel for the Initial Purchasers, without charge, such number of copies of the Preliminary Offering Memorandum and the Offering Memorandum and any amendments or supplements thereto as the Initial Purchasers and their counsel may reasonably request.
(b) The Issuers will not amend or supplement the Final Memorandum or at any time make any amendment or supplement thereto to the Preliminary Offering Memorandum or the Offering Memorandum without the prior written consent of which the Initial Purchasers.
(c) If at any time prior to completion of the distribution of the Securities by the Initial Purchasers shall to purchasers who are not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and its affiliates (as to which determined by the Initial Purchasers Purchasers) any event shall not have given their consentoccur or condition shall exist as a result of which it is necessary, which consent shall not be unreasonably withheld. The Issuers will promptly, upon in the reasonable request opinion of the Initial Purchasers or counsel for the Initial Purchasers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum, as then amended or supplemented, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make any amendments the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or supplements if in the opinion of the Initial Purchasers or counsel to the Preliminary Initial Purchasers, such amendment or supplement is necessary to comply with applicable law, the Issuers will, subject to paragraph (b) of this Section 5, promptly prepare, at their own expense, such amendment or supplement as may be necessary to correct such untrue statement or omission or to effect such compliance (in form and substance agreed upon by the Initial Purchasers and counsel to the Initial Purchasers), so that as so amended or supplemented, the statements in the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or so that such Offering Memorandum as so amended or supplemented will comply with applicable law, as the case may be, and furnish to the Initial Purchasers such number of copies of such amendment or supplement as the Initial Purchasers may reasonably request. Each of the Issuers agrees to notify the Initial Purchasers in writing to suspend use of the Offering Memorandum as promptly as practicable after the occurrence of an event specified in this paragraph (c), and the Initial Purchasers hereby agree upon receipt of such notice from the Issuers to suspend use of the Offering Memorandum until the Issuers have amended or supplemented the Offering Memorandum to correct such misstatement or omission or to effect such compliance.
(d) Notwithstanding any provision of paragraph (b) or (c) to the contrary, however, the Issuers' obligations under paragraphs (b) and (c) and the Initial Purchasers' obligations under paragraph (c) shall terminate on the earliest to occur of (i) expiration of the Exchange Offer (as defined in the Registration Rights Agreement) pursuant to the Registration Rights Agreement, (ii) the effective date of a shelf registration statement with respect to the Securities filed pursuant to the Registration Rights Agreement, (iii) the date upon which no Initial Purchaser nor any of their respective affiliates continues to hold Securities acquired as part of their initial distribution and (iv) the date upon which no Initial Purchaser nor any of their respective affiliates continues to hold Private Exchange Securities, if any.
(e) None of the Issuers nor any of their affiliates (as defined in Rule 501(b) under the Act) will solicit any offer to buy or offer or sell the Securities, the Exchange Securities or the Final Private Exchange Securities, if any, by means of any form of general solicitation or general advertising (as such terms are used in Regulation D under the Act), or by means of any directed selling efforts (as defined in Rule 902 under the Act) in the United States in connection with the Securities being offered and sold pursuant to Regulation S or in any manner involving a public offering within the meaning of Section 4(2) of the Act prior to the effectiveness of a registration statement with respect to the Securities, the Exchange Securities or the Private Exchange Securities, as applicable.
(f) None of the Issuers nor any of their affiliates (as defined in Rule 501(b) under the Act) will offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) which could be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Act.
(g) The Company will, so long as the Securities are outstanding, furnish to the Trustee on a timely basis, pursuant to the Indenture, whether or not the Company has a class of securities registered under the Exchange Act (i) audited year-end consolidated financial statements of BBC (including a balance sheet, income statement and statement of changes of cash flow) prepared in accordance with GAAP and substantially in the form required under Regulation S-X under the Act and the information described in Item 303 of Regulation S-K under the Act with respect to such period and (ii) unaudited quarterly consolidated financial statements of BBC (including a balance sheet, income statement and statement of changes of cash flow) prepared in accordance with GAAP and substantially in the form required by Regulation S-X under the Act and the information described in Item 303 of Regulation S-K under the Act with respect to such period and will furnish to the Initial Purchasers copies of all such reports and information, together with such other documents, reports and information as shall be furnished by the Company to the holders of the Securities or to the Trustee. In the event the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of Securities and prospective purchasers of Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Securities.
(h) Each of the Issuers will use its reasonable best efforts in cooperation with the Initial Purchasers to (i) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company and (ii) permit the Securities to be designated as PORTAL securities in accordance with the rules and regulations of the NASD.
(i) Prior to the Closing Time, the Company, will furnish to the Initial Purchasers, if and as soon as they have been prepared, a copy of any unaudited interim consolidated financial statements of BBC for any period subsequent to the period covered by the most recent financial statements of BBC appearing in the Offering Memorandum that may which have been prepared in the ordinary course of business.
(j) Each Security and Private Exchange Security, if any, will bear the following legend until such legend shall no longer be necessary or advisable in connection with the resale of because the Securities by are no longer subject to the Initial Purchasersrestrictions on transfer described herein: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OF REGULATION S, (2) AGREES THAT IT WILL NOT, PRIOR TO (X) THE DATE WHICH IS THREE YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR ANY PREDECESSOR OF THIS SECURITY OR THE LAST DATE ON WHICH BLUE BIRD BODY COMPANY (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH -21- ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
(bk) The Issuers will cooperate with the Initial Purchasers in arranging arrange for the registration and qualification of the Securities for offering and sale under the applicable securities or "Blue Skyblue sky" laws of which such states and other jurisdictions as the Initial Purchasers may designate in connection with the resale of the Securities as contemplated by this Agreement and the Offering Memorandum and will continue such qualifications in effect for as long as may be necessary to complete the resale distribution of the Securities; provided, however, provided that in connection therewith, none no event shall any of the Issuers shall be required obligated to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to execute a so qualify but for this Section 5(k), (ii) file any general consent to service of process in any jurisdiction where it is not at the Closing Time then so subject or (iii) subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where if it is not then so subject. The Issuers will file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided. The Issuers shall promptly advise the Initial Purchasers of the receipt by any of the Issuers of any notification with respect to the suspension of the qualification or exemption from qualification of the Securities for offering or sale in any jurisdiction or the institution, threatening or contemplation of any proceeding for such purpose.
(cl) If, at any time prior From the date hereof to the completion Closing Time, none of the sale Issuers will issue any press release or other public communication directly or indirectly or hold any press conference with respect to the Issuers or any of Securities by the Subsidiaries or the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the Issuers or any of the Subsidiaries, without the prior consent of the Initial Purchasers (which consent shall not be unreasonably withheld), unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, any event occurs such press release, communication or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it conference is necessary at any time to amend or supplement the Final Memorandum to comply with applicable required by law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(dm) The Issuers will, without charge, provide to Company will use the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds received from the sale of the Securities as set forth in the manner specified in the Offering Memorandum under the heading "Use of Proceeds" in ."
(n) The Issuers shall not, for a period of 180 days from the Final date of the Offering Memorandum, without the prior written consent the Initial Purchasers, directly or indirectly, offer, sell, grant any option to purchase or otherwise dispose of any debt securities of the Company or any of the Subsidiaries (other than the Exchange Securities and the Private Exchange Securities, if any).
(fo) For so long as any of the Securities remain outstandingThe Company agrees, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications at its expense, (financial or otherwisei) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by practicable after the Issuers Closing Time and concurrent with the Commission filing of a registration statement with respect to the Exchange Securities or any national the Securities, as the case may be, under the Registration Rights Agreement, it will prepare a registration statement under the Act in connection with the market-making activities of Xxxxxxx Xxxxx with respect to the Exchange Securities or international securities exchange on which any class of securities the Securities, as the case may be, containing such disclosures as are customary and appropriate for such a document and file such registration statement and use its best efforts to cause such registration statement to become effective under the Act as soon as practicable thereafter or (ii) in lieu of the Issuers may be listed.
registration statement in clause (gi) Prior to the Closing Datehereof, the Company will furnish cause the registration statement in respect of the Exchange Securities or the Securities, as the case may be, to contain alternative pages in connection with the market-making activities of Xxxxxxx Xxxxx with respect to the Initial PurchasersExchange Securities or the Securities, as soon the case may be, and that, in the case of either clause (i) or (ii) hereof, it will keep such registration statement in effect as they have been preparedlong as is required by the Act in the reasonable judgement of Xxxxxxx Xxxxx to engage in market-making activities. The Company agrees to obtain from its independent accountants, at its expense, on each effective date of such registration statement, a copy letter addressed to Xxxxxxx Xxxxx dated such date covering matters described in Section 5(g) hereof, modified as appropriate to reflect the registered nature of any unaudited interim financial statements the Exchange Securities or the Securities, as the case may be, in each case, in form and substance satisfactory to Xxxxxxx Xxxxx. The Company agrees to xxxxxxx Xxxxxxx Xxxxx as many copies of the registration statement and each report of the Company for any period subsequent filed with the Commission pursuant to Section 13 or 15 of the period covered Exchange Act as Xxxxxxx Xxxxx shall reasonably request in connection with its market-making activities. If a "qualified independent underwriter" is required by the most recent financial statements appearing in National Association of Securities Dealers, Inc. (the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the ActNASD") in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstandingsuch market-making activities, the Company will make available at its expense, shall pay such underwriter's fee (in a customary amount for transactions of this type and amount) and expenses and to indemnify such underwriter on customary terms. Such qualified independent underwriter shall be a firm selected by Xxxxxxx Xxxxx and reasonably agreed upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Samples: Purchase Agreement (Blue Bird Corp)
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will prepare the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum in the form approved by the Representative and will not amend or supplement the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum or any amendment or supplement thereto of which without first furnishing to the Initial Purchasers shall not previously have been advised and furnished Representative a copy for a reasonable period of time prior to the such proposed amendment or supplement and as will not use any amendment or supplement to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that Representative may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersreasonably object.
(b) The Issuers will cooperate with furnish to the Initial Purchasers in arranging and to Counsel for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate concurrently with the Time of Sale and will continue such qualifications during the period referred to in effect for paragraph (c) below, without charge, as long as may be necessary to complete the resale many copies of the Securities; provided, however, that in connection therewith, none of Preliminary Memorandum and the Issuers shall be required to qualify Offering Memorandum and any amendments and supplements thereto as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectthey reasonably may request.
(c) If, at At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known condition exists as a result of which the Final Preliminary Memorandum or the Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Final Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Company Issuers will promptly (i) notify the Initial Purchasers thereof of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Companytheir own expense, an amendment or supplement to the Final Preliminary Memorandum or the Offering Memorandum, as the case may be, so that corrects the Preliminary Memorandum or the Offering Memorandum, as so amended or supplemented, will not, when it is delivered to a purchaser, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (iii) supply any supplemented or amended Preliminary Memorandum or Offering Memorandum to the Initial Purchasers and Counsel for the Initial Purchasers, without charge, in such statement or omission or effects such compliancequantities as may be reasonably requested.
(d) The Issuers will, without charge, provide to will (i) qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative may reasonably designate and (ii) maintain such qualifications for so long as required for the sale of the Notes by the Initial Purchasers; provided that the Issuers shall not be required to counsel file a prospectus or to otherwise qualify the Notes or Exchange Notes for distribution to the public in any province or territory of Canada; provided, further, that in connection with any such qualification, neither Parent nor any of its subsidiaries shall be required to qualify as a foreign corporation where it is not now so qualified or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject. The Issuers will promptly advise the Initial Purchasers as many copies of the Preliminary Memorandum receipt by the Issuers of any written notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(e) At any time prior to the completion of the distribution of the Notes by the Initial Purchasers, the Issuers will deliver to the Representative such additional information concerning the business and financial condition of the Issuers and the Final Memorandum or any amendment or supplement thereto Guarantors as the Initial Purchasers may from time to time reasonably request.
(e) . The Issuers will apply promptly notify the net proceeds Representative of (i) any decrease in the rating of the Notes or any other debt securities of Xxxxxxx Bros., an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities Act) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, promptly after the Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the sale Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports and financial statements required to be delivered to the Trustee or holders of the Securities as set forth under "Use of Proceeds" in Notes pursuant to the Final MemorandumIndenture or otherwise.
(f) Parent, and the Issuers will not, and will not permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act or in accordance with Rule 144 under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement, none of Parent, the Issuers or any of their affiliates (as defined in Rule 501(b) of Regulation D), nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(h) For so long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities remain outstandingAct, none of Parent, the Issuers will furnish to or any of their affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers copies or any of all reports and other communications their respective affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (financial within the meaning of Regulation D) or otherwisein any manner involving a public offering within the meaning of Section 4(2) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listedAct.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(hi) None of Parent, the Issuers nor or any of their Affiliates affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(j) None of Parent, the Issuers or any of their affiliates (as defined in Rule 501(b) of Regulation D), nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale securities of the Securities same or a similar class as the Notes, other than the Notes offered or sold to the Initial Purchasers hereunder in a manner that which would require the registration under the Securities Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange ActNotes.
(k) The Parent and the Issuers will use all reasonable efforts to (i) permit apply the Securities to be designated net proceeds from the sale of the Notes as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading set forth under “Use of Proceeds” in the NASD's Portal Market (Preliminary Memorandum and the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyOffering Memorandum.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) Until completion of the distribution, neither Parent nor the Issuers will not register take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(m) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer of such Securities not made in accordance with the provisions of Regulation S and described therein: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER, OR AN EXEMPTION FROM THE REGIS TRATION REQUIREMENTS OF, THE SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS CONTAINED IN THE INDENTURE UNDER WHICH THIS NOTE WAS ISSUED.
(n) The Issuers will not, except in accordance with directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities of an Issuer substantially similar to the provisions Notes (other than the Notes offered pursuant to this Agreement) for a period of 60 days after the date hereof, without the prior written consent of the Representative.
(o) The Issuers will, promptly after it has notified the Representative of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation SSection 1.6011-4), if applicable, issue deliver a duly completed copy of IRS Form 8886 or any such Securities successor form to the Representative.
(p) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the form capacity of definitive securitiesan arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of the Notes and the Guarantees contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers or any other person. Additionally, no Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuers or Guarantors with respect thereto. Any review by the Initial Purchasers of the Issuers or the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Issuers or the Guarantors.
(q) The Issuers and the Guarantors shall cause the Notes to be secured by perfected third priority liens on the Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Offering Memorandum.
(r) Notwithstanding anything to the contrary contained in this Agreement, the Indenture or the Security Documents, the parties hereto acknowledge and agree that Parent and its subsidiaries shall be required to take the actions specified in the “Post Closing Obligations” covenant in the Indenture as promptly as reasonably practicable, and in any event within the periods after the Closing Time specified in such covenant.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, consent which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any reasonable amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the SecuritiesNotes; providedPROVIDED, howeverHOWEVER, that in connection therewith, none of the Issuers shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so qualified or subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities Notes remain outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by any of the Issuers with the Commission or any national or international securities exchange on which any class of securities of either of the Issuers may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company Issuers for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities securities in a manner that which would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company Issuers will make available at its their expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal MarketPORTAL MARKET") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-off shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the Issuers Issuers, jointly and severally, covenants and agrees with the Initial Purchasers that:
(a) The None of the Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their its consent, which consent shall will not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Each of the Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities Notes substantially as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstandingoutstanding (but in no event longer than five years), the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing Date, the Company Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all their reasonable best efforts to (i) permit assist the Securities Initial Purchasers in permitting the Notes to be designated as Portal-eligible PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market Private Offerings, Resales and Trading through Automated Linkages market (the "Portal PORTAL Market") and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each In further consideration of the agreements of the Placement Agents contained in this Agreement, Coyote and, as of the Closing Date, the Issuers covenants and agrees covenant with the Initial Purchasers thateach Placement Agent as follows:
(a) The Issuers will To furnish to the Placement Agents in New York City, without charge, as soon as practicable after the date of this Agreement and during the period mentioned in Section 6(c), as many copies of the Preliminary Memorandum, the Final Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as the Placement Agents may reasonably request.
(b) Before amending or supplementing either Memorandum, to furnish to the Placement Agents a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which the Placement Agents reasonably object.
(c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Placement Agents, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum or any amendment or supplement thereto of which in order to make the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to statements therein, in the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request light of the Initial Purchasers circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersPlacement Agents, make any it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Placement Agents, either amendments or supplements to the Preliminary Final Memorandum or so that the statements in the Final Memorandum that may be necessary as so amended or advisable supplemented will not, in connection with the resale light of the Securities by circumstances when the Initial PurchasersFinal Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(bd) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of To endeavor to qualify the Securities for offering offer and sale under the securities or "Blue Sky" Sky laws of which such jurisdictions as the Initial Purchasers Placement Agents may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(ce) IfWhether or not the Transactions or the other transactions contemplated in this Agreement are consummated or this Agreement is terminated, at any time prior to pay or cause to be paid all expenses incident to the completion performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Issuers' counsel and the Issuers' accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Placement Agents, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Placement Agents, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Placement Agents in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) any fees charged by rating agencies for the rating of the Securities, (v) all document production charges and expenses of counsel to the Placement Agents (but not including their fees for professional services) in connection with the preparation of this Agreement, (vi) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL or any appropriate market system, (vii) the costs and charges of the Trustee and any transfer agent, regis- trar or depositary, (viii) the cost of the preparation, issuance and delivery of the Securities, (ix) the costs and expenses of the Issuers relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Issuers, travel and lodging expenses of the representatives and officers of the Issuers and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (x) all other costs and expenses incident to the performance of the obligations of the Issuers hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Placement Agents will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(f) Neither the Issuers nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities by in a manner which would require the Initial Purchasers, any event occurs or information becomes known as a result of which registration under the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light Securities Act of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such complianceSecurities.
(dg) The Issuers will, without charge, provide Not to solicit any offer to buy or offer or sell the Initial Purchasers and to counsel for Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Initial Purchasers as many copies Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably requestSecurities Act.
(eh) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) To use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Issuers, their Affiliates or any person acting on their behalf (other than the Placement Agents) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Issuers and their Affiliates and each person acting on their behalf (other than the Placement Agents) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Issuers will not, and will not permit any of their affiliates (as defined in Rule 144 under the Secu- rities Act) to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) The Issuers Company will apply the net proceeds from the sale of the Securities substantially as set forth under "Use of Proceeds" in the Final Memorandum.
(fm) For so long as any of the Securities remain outstanding, the Issuers will furnish to the Initial Purchasers Placement Agents copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers Company with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(gn) Prior to the Closing Date, the Company will furnish to the Initial PurchasersPlacement Agents, as soon as practicable after they have been prepared, a copy of any unaudited interim consolidated financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers that:
(a) The Issuers will prepare the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum in the form approved by the Representatives and will not amend or supplement the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum or any amendment or supplement thereto of which without first furnishing to the Initial Purchasers shall not previously have been advised and furnished Representatives a copy for a reasonable period of time prior to the such proposed amendment or supplement and as will not use any amendment or supplement to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that Representatives may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersobject.
(b) The Issuers will cooperate with furnish to the Initial Purchasers in arranging and to Counsel for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate concurrently with the Time of Sale and will continue such qualifications during the period referred to in effect for paragraph (c) below, without charge, as long as may be necessary to complete the resale many copies of the Securities; provided, however, that in connection therewith, none of Preliminary Memorandum and the Issuers shall be required to qualify Offering Memorandum and any amendments and supplements thereto as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subjectthey reasonably may request.
(c) IfBefore making, at preparing, using, authorizing, approving or referring to any Issuer Written Communication, the Partnership will furnish to the Representatives and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(d) At any time prior to the completion of the sale distribution of Securities the Notes by the Initial Purchasers, if any event occurs or information becomes known condition exists as a result of which the Final Preliminary Memorandum or the Offering Memorandum, as then amended or supplemented supplemented, would include any untrue statement of a material fact, fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is should be necessary at any time to amend or supplement the Final Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Company Issuers will promptly (i) notify the Initial Purchasers thereof of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and will prepareprovide to the Initial Purchasers, at the expense of the Companytheir own expense, an amendment or supplement to the Final Preliminary Memorandum or the Offering Memorandum, so that corrects such statement the statements in the Preliminary Memorandum or omission the Offering Memorandum as so amended or effects such compliance.
supplemented will not, in the light of the circumstances when the Preliminary Memorandum or the Offering Memorandum, is delivered to a purchaser, be misleading or so that the Preliminary Memorandum or the Offering Memorandum, as amended or supplemented, will comply with applicable law; and (diii) The Issuers willsupply any supplemented or amended the Preliminary Memorandum or the Offering Memorandum, without charge, provide to the Initial Purchasers and to counsel Counsel for the Initial Purchasers Purchasers, without charge, in such quantities as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may be reasonably requestrequested.
(e) The Issuers will apply (i) cooperate with the net proceeds from Initial Purchasers to qualify the Notes and the Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives may designate and (ii) maintain such qualifications for so long as required for the sale of the Securities Notes by the Initial Purchasers. The Issuers will promptly advise the Initial Purchasers of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. None of the Issuers or any of the Guarantors shall be required to qualify as set forth under "Use a foreign corporation or other entity or to take any action that would subject it to general service of Proceeds" process in the Final Memorandumany such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation or other entity.
(f) For so long as At any time prior to the completion of the Securities remain outstandingdistribution of the Notes by the Initial Purchasers, the Issuers will furnish deliver to the Initial Purchasers copies such additional information concerning the business and financial condition of all reports the Issuers and other communications the Guarantors as the Initial Purchasers may from time to time request and whenever it or any of its subsidiaries publishes or makes available to the public (financial by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) furnished by any information that would reasonably be expected to be material in the Issuers context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the Trustee nature of such information or to event. The Issuers will likewise notify the holders Initial Purchasers of (i) any decrease in the rating of the Notes or any other debt securities of an Issuer or any Guarantor by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities andAct) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes, as soon as available, copies the Issuers become aware of any reports such decrease, notice or financial statements furnished to or filed by the public announcement. The Issuers with the Commission or any national or international securities exchange on which any class will also, for a period of securities of the Issuers may be listed.
(g) Prior to three years from the Closing Date, the Company will furnish deliver to the Initial Purchasers, as soon as they available and without request, copies of any reports and financial statements furnished to or filed with the Commission or required to be delivered to the Trustee or holders of the Notes pursuant to the Indenture or otherwise; provided, however, that if such reports or financial statements are publically available on the Commission’s XXXXX database, delivery to the Initial Purchasers shall not be required.
(g) During the period of one year after the Closing Date, the Issuers will not, and will not permit any of their Affiliates to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been preparedacquired by any of them, a copy of any unaudited interim financial statements of other than pursuant to an effective registration statement under the Company for any period subsequent to Securities Act or in accordance with Rule 144 under the period covered by the most recent financial statements appearing in the Final MemorandumSecurities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Securities Act.
(i) None of the Issuers nor or any of their Affiliates Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(j) None the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S.
(k) None of the Issuers or any of their Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which no statement is made), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale securities of the Securities same or a similar class as the Notes, other than the Notes offered or sold to the Initial Purchasers hereunder, in a manner that which would require the registration under the Securities Act of the SecuritiesNotes.
(il) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so So long as any of the Securities remain outstanding, Notes are “restricted securities” within the Company will make available at its expense, upon request, to any holder meaning of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4144(a)(3) under the Securities Act, unless at any time that the Company is Issuers are not then subject to Section 13 or 15(d) of the Exchange Act, the Issuers will provide at their expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(km) The Issuers will use all reasonable efforts apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and the Offering Memorandum.
(n) Until completion of the distribution, neither the Issuers nor any of their Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes.
(o) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR THE DATE OF ANY SUBSEQUENT REOPENING OF THE NOTES AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market PURSUANT TO CLAUSE (the "Portal Market"D) and PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyIN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER OR AN ISSUER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(lp) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the The Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities of an Issuer or warrants to purchase debt securities of an Issuer substantially similar to the provisions Notes (other than the Notes offered pursuant to this Agreement) for a period of 60 days after the date hereof, without the prior written consent of Xxxxx Fargo Securities, LLC.
(q) The Issuers will, promptly after they have notified the Representatives of any intention by the Issuers to treat the Transactions as being a “reportable transaction” (within the meaning of Treasury Regulation SSection 1.6011-4), if applicable, issue deliver a duly completed copy of IRS Form 8886 or any such Securities successor form to the Representatives.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the form capacity of definitive securitiesan arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of the Notes and the Guarantees contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers or any other person. Additionally, no Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuers or Guarantors with respect thereto. Any review by the Initial Purchasers of the Issuers or the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Issuers or the Guarantors.
Appears in 1 contract
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers Purchaser that:
(a) The Issuers will not amend advise the Initial Purchaser promptly and (if requested by the Initial Purchaser) confirm such advice in writing of any amendment or supplement to the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers Purchaser shall not previously have been advised and furnished will furnish a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheldsupplement. The Issuers will promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for the Initial PurchasersPurchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum or any change to a proposed amendment or supplement to the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial PurchasersPurchaser.
(b) The Prior to the sale of all the Notes by the Initial Purchaser in accordance with Section 4, the Issuers will cooperate with the Initial Purchasers Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the SecuritiesSecurities by the Initial Purchaser; providedPROVIDED, howeverHOWEVER, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale distribution of the Securities by the Initial Purchasers, Purchaser any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers Purchaser may reasonably request.
(e) The Issuers Company will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Issuers Company will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Issuers Company to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listedNotes.
(g) Prior to the Closing Date, the Company will furnish to the Initial PurchasersPurchaser, as soon as they have been prepared, a copy of any available unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities in a manner that which would require the registration of the Securities under the Act of the SecuritiesAct.
(i) None of the The Issuers will not engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering of the Securities within the meaning of Section 4(2) of the ActAct other than the Exchange Offer.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(k) The Issuers Company will use all reasonable its best efforts to (i) permit the Securities to be designated as Portal-eligible Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") securities in accordance with the rules and regulations adopted by the NASD National Association of Securities Dealers, Inc. ("NASD") relating to trading in the NASD's Portal Market PORTAL market (the "Portal MarketPORTAL MARKET") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers Company will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each The Issuers covenant and agree as follows:
(q) If and to the extent the Remarketed Notes are required (in the view of counsel, which need not be in the form of a written opinion, for either the Remarketing Agent or the Issuers) to be registered under the Securities Act as in effect at the time of the Remarketing, the Issuers shall:
(i) prepare the Registration Statement and the Prospectus, in a form approved by the Remarketing Agent, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission prior to the second Business Day immediately preceding the applicable Remarketing Date;
(ii) file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Issuers covenants or the Remarketing Agent, be required by the Securities Act or requested by the Commission;
(iii) advise the Remarketing Agent, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and agrees to furnish the Remarketing Agent with copies thereof;
(iv) file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers with the Initial Purchasers that:
(aCommission pursuant to Section 13(a), 13(c), 14 or 15(d) The Issuers will not amend or supplement of the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior Exchange Act subsequent to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request date of the Initial Purchasers or counsel Prospectus and for so long as the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable delivery of a Prospectus is required in connection with the resale offering or sale of the Securities Remarketed Notes;
(v) file all Issuer Free Writing Prospectuses required to be filed by the Initial Purchasers.Issuers with the Commission pursuant to Rule 433(d) under the Securities Act;
(vi) advise the Remarketing Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, of the suspension of the qualification of any of the Remarketed Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information, and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or any Prospectus or suspending any such qualification, to use promptly every reasonable effort to obtain its withdrawal;
(vii) furnish promptly to the Remarketing Agent such copies of the following documents as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering Preliminary Prospectus and sale under the securities any amended or "Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securitiessupplemented Preliminary Prospectus; provided, however, that in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) Ifthe Prospectus and any amended or supplemented Prospectus; and (d) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time prior when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the completion of Securities Act) is required in connection with the sale of Securities by the Initial PurchasersRemarketing, any event occurs or information becomes known shall have occurred as a result of which the Final Memorandum Prospectus as then amended or supplemented would include any untrue statement of a material fact, fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or if for any other reason it is shall be necessary at any time during such same period to amend or supplement the Final Memorandum Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, the Company will promptly to notify the Initial Purchasers thereof Remarketing Agent and, upon its request, to file such document and will prepare, at the expense of the Company, an amendment or supplement to prepare and furnish without charge to the Final Memorandum Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that corrects will correct such statement or omission or effects effect such compliance;
(viii) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(ix) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make “generally available to its security holders” an “earnings statement” of the Issuers complying with (which need not be audited) Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Issuers, Rule 158 under the Securities Act). The terms “generally available to its security holders” and “earnings statement” shall have the meanings set forth in Rule 158; and
(x) take such action as the Remarketing Agent may reasonably request in order to qualify the Remarketed Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Remarketing Agent may reasonably request; provided that in no event shall the Issuers be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(dr) The Issuers will, without charge, provide Company shall pay: (i) the costs incident to the Initial Purchasers preparation and to counsel for the Initial Purchasers as many copies printing of the Registration Statement, if any, any Preliminary Memorandum Prospectus, any Issuer Free Writing Prospectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the Final Memorandum costs of distributing the Registration Statement, if any, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (iii) the cost of printing, word-processing or reproducing this Agreement and any amendment or supplement thereto documents in connection with the offering, purchase, sale and delivery of the Remarketed Notes; (iv) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the several jurisdictions as provided in Section 5(a)(x) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including any related reasonable fees and expenses of counsel to the Initial Purchasers may reasonably request.
Remarketing Agent); (ev) The Issuers will apply any filing fees incident to any required review and clearance by the net proceeds from Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Securities as set forth under "Use Remarketed Notes; (vi) all other costs and expenses incident to the performance of Proceeds" the obligations of the Issuers hereunder and the Remarketing Agent hereunder; and (vii) the reasonable fees and expenses of counsel to the Remarketing Agent in the Final Memorandumconnection with its duties hereunder.
(fs) For so long The Issuers shall furnish the Remarketing Agent with such information and documents as the Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information that parties would customarily require in connection with a due diligence investigation conducted in accordance with applicable securities laws and to cause the Issuers’ officers, directors, employees and accountants to participate in all such discussions and to supply all such information reasonably requested by any such Person in connection with such investigation.
(t) At the written request of the Securities remain outstandingRemarketing Agent, between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuers will furnish to not, without the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders prior written consent of the Remarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract or grant any option to sell, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities andAct in respect of, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of debt securities of the Issuers may be listedsimilar to the Remarketed Notes or securities exchangeable for or convertible into debt securities similar to the Remarketed Notes.
(gu) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements Each of the Company for and PPL Funding Capital represents and agrees that, unless it obtains the prior consent of the Remarketing Agent, and the Remarketing Agent represents and agrees that, unless it obtains the prior consent of the Issuers, it has not made and will not make any period subsequent offer relating to the period covered Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Act, required to be filed with the Commission. Any such free writing prospectus consented to in writing by the most recent financial statements appearing Issuers and the Remarketing Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and PPL Funding Capital represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the Final MemorandumAct, and has complied and will comply with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(hv) None The Issuers shall prepare a final term sheet relating to the Remarketed Notes, containing only information that describes the final terms of the Issuers nor any of their Affiliates Remarketed Notes after providing the Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (such final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Issuers), and will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities.
(i) None of the Issuers will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering file such final term sheet within the meaning of Section 4(2period required by Rule 433(d) of the ActAct following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
Appears in 1 contract
Covenants of the Issuers. Each The Issuers covenant and agree with each of the Issuers covenants and agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for to the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Skyblue sky" laws of which such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, none of the Issuers shall not be required to qualify as a foreign corporation corporation, to take any acts which would require it to qualify to do business or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchasers of the Notes, the Exchange Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers thereof (who thereafter will not use such Memorandum until appropriately amended or supplemented) and will prepare, at the expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are outstanding, the Issuers will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities Notes and, as soon as promptly after available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers Company may be listed.
(g) Prior to the Closing DateTime of Purchase, the Company will furnish to the Initial Purchasers, as soon as they have been preparedprepared in final form, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(i) None of the The Issuers will engage in not solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities Notes remain outstandingoutstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and not saleable in full under Rule 144 under the Act (or any successor provision), the Company Issuers will make available at its expenseavailable, upon request, to any holder seller of such Securities and any prospective purchasers thereof Notes the information specified in Rule 144A(d)(4) under the Act, unless the Company is Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable their best efforts to (i) permit the Securities Notes to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") included for quotation on PORTAL and (ii) permit the Securities Notes to be eligible for clearance and settlement through The Depository Trust Company.
(l) The Issuers, TWP and Communications (to the extent a party thereto) will do and perform all things required to be done and performed by them under this Agreement and the other Basic Documents prior to or after the Closing, subject to the qualifications and limitations in the writing that expresses such obligations, and to satisfy all conditions precedent on their part to the obligations of the Initial Purchasers under this Agreement to purchase and accept delivery of the Notes.
(m) In connection with Securities Notes offered and sold in an off-shore offshore transaction (as defined in Regulation S) ), the Issuers will not register any transfer of such Securities Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities Notes in the form of definitive securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (TWP Capital Corp Ii)
Covenants of the Issuers. Each of the The Issuers covenants covenant and agrees agree with the Initial Purchasers Purchaser that:
(a) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto of as to which the Initial Purchasers Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers Purchaser shall not have given their its consent, which consent shall not be unreasonably withheld. The Issuers will promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for to the Initial PurchasersPurchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be deemed necessary or advisable by the Initial Purchaser or counsel to the Initial Purchaser in connection with the resale of the Securities Notes by the Initial PurchasersPurchaser.
(b) The Issuers will cooperate with the Initial Purchasers Purchaser in arranging for the qualification of the Securities Notes for offering and sale under the securities or "Blue Sky" laws of which such jurisdictions as the Initial Purchasers Purchaser may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that that, in connection therewith, none of the Issuers neither Issuer shall be required to qualify as a foreign corporation or foreign limited partnership, as the case may be, or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the sale of Securities distribution by the Initial PurchasersPurchaser of the Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company Issuers will promptly notify the Initial Purchasers Purchaser thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and will prepare, at the sole expense of the CompanyIssuers, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for to the Initial Purchasers Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers Purchaser may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are outstanding, the Issuers will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Issuers to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuers with the Commission or any national or international securities exchange on which any class of securities of the Issuers may be listedNotes.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None Neither of the Issuers nor any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that which could be integrated with the sale of the Securities Notes in a manner that which would require the registration under the Act of the SecuritiesNotes.
(ih) None of the The Issuers will engage in not solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use all reasonable efforts to (i) permit the Securities to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the NASD relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an off-shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.)
Appears in 1 contract