Covenants of the Issuers. The Great Wolf Parties covenant and agree with each Initial Purchaser as follows: (a) 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject. (1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities. (h) 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. (i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act. (j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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. The Great Wolf Parties Issuers covenant and agree with each the several Initial Purchaser Purchasers as follows:
(a) Until the last At any time prior to occur of (i) the completion of the distribution of the Securities Notes by the Initial Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing Date, the Great Wolf Parties Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 give the Initial Purchasers shall 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 amendmentfiling or use, and will not use any such amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 Pricing Disclosure Package and 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 Great Wolf Parties 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subjectreasonably request.
(1c) If, at At any time prior to the latest of (i) the completion of the sale distribution of the Notes by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DatePurchasers, if any event occurs or information becomes known shall occur as a result of which it is necessary, in the Pricing Disclosure Package and reasonable opinion of counsel for the Final Initial Purchasers, to amend or supplement the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary in order to make the statements therein, Offering Memorandum not misleading in the light of the circumstances under which they were made, not misleading, or if for any other reason existing at the time it is necessary at any time delivered to a purchaser, the Issuers will forthwith amend or supplement the Pricing Disclosure Package Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Final Memorandum to comply with applicable lawInitial Purchasers) so that, as so amended or supplemented, the Great Wolf Parties Offering Memorandum will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, not include an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any 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 any Issuer Written Communication would conflict with misleading, and 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 Issuers 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 a reasonable number of copies of such amendments amendment 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 lawsupplement.
(d) The Great Wolf Parties willIssuers will 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final Memorandumgeneral solicitation or general advertising.
(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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the Great Wolf Group Members Issuers 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 which that would require the registration under the Act of the Securities.
(h) 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 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.
(ig) For The Issuers will, so long as any of the Securities remain Notes are outstanding and are "restricted securities" within the Issuers are required pursuant to the provisions meaning 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 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)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Issuers are then Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is 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.
(jh) The Great Wolf Parties will Issuers will, if requested by the Initial Purchasers, use all commercially reasonable its best efforts in cooperation with the Initial Purchasers to 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) During the period beginning on the date hereof and continuing Prior 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 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), except as provided hereunder, for any securities of any Great Wolf Group Member (or guaranteed by any Great Wolf Group Member) that are substantially similar periods subsequent to the Securitiesperiods 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 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 usury laws against any such Securities in the form of definitive securities.
(m) None holders 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 SecuritiesNotes.
(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. The Great Wolf Parties In further consideration of the agreements of the Placement Agents contained in this Agreement, Coyote and, as of the Closing Date, the Issuers covenant and agree with each Initial Purchaser Placement Agent as follows:
(a) Until To furnish to the last to occur Placement Agents in New York City, without charge, as soon as practicable after the date of (i) this Agreement and during the completion period mentioned in Section 6(c), as many copies of the distribution 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 Initial PurchasersPlacement Agents, (ii) the Closing Date and (iii) 180 days after the Closing Date, the Great Wolf Parties will not any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package and Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or otherwise distribute or refer to any written communication (as defined under Rule 405 if, in the opinion of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties will promptly, upon the reasonable request of the Initial Purchasers or 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 Pricing Disclosure Package and Final Memorandum 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in any such jurisdiction where it is not then so subject.
(1e) 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 latest performance of its obligations under this Agreement, including: (i) the completion fees, disbursements and expenses of the Issuers' counsel and the Issuers' accountants in connection with the issuance and sale by the Initial Purchasers of the Securities and all other fees or expenses in connection with the Private Exchange Securities 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) 180 days 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 in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or 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) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) 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, 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 factIssuers will not, 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at not permit any of their affiliates (as defined in Rule 144 under the expense of the Great Wolf Parties, an amendment or supplement Secu- rities Act) to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which resell 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 Securities which constitute "restricted securities" 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 Rule 144 that have been reacquired by 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 lawthem.
(dl) The Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 Company will apply the net proceeds from the sale of the Securities substantially as set forth under “"Use of Proceeds” " in the Pricing Disclosure Package and the Final Memorandum.
(fm) 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 Placement Agents copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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 Prior to the Closing Date, the Company will furnish to the Placement 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 of one year (calculated in accordance with paragraphs (d) of Rule 144 under subsequent to the Act) following the date any Securities are acquired period covered 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) most recent financial statements appearing in the written opinion of reputable counsel, the buyer of such Securities is not acquiring “restricted securities” under Rule 144Final Memorandum.
(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. The Great Wolf Parties Issuers covenant and agree with each Initial Purchaser as follows:
(a) Until If and to the last 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 occur be registered under the Securities Act as in effect at the time of the Remarketing, the Issuers shall:
(i) prepare the completion of Registration Statement and the distribution of Prospectus, in a form approved by the Remarketing Agent, file any such Prospectus pursuant to the Securities Act within the period required by the Initial Purchasers, 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 Closing Date and 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 or the Remarketing Agent, be required by the Securities Act or requested by the Commission;
(iii) 180 days advise the Remarketing Agent, promptly after the Closing Dateit receives notice thereof, the Great Wolf Parties will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Acttime 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 to furnish the Remarketing Agent with copies thereof;
(iv) that constitutes an offer file promptly all reports and any definitive proxy or information statements required to sell or a solicitation of an offer to buy be filed by the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report Issuers with the Commission under pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior subsequent to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties will cooperate with the Initial Purchasers Preliminary Prospectus and any amended or supplemented Preliminary Prospectus; (c) the Prospectus and any amended or supplemented Prospectus; and (d) any document incorporated by reference 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 SecuritiesProspectus (excluding exhibits thereto); providedand, however, that in connection therewith, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, if at any time prior when delivery of a prospectus (or in lieu thereof, the notice referred to the latest of (iin Rule 173(a) the completion of the sale by the Initial Purchasers of under the Securities or Act) is required in connection with the Private Exchange Securities and (ii) 180 days after the Closing DateRemarketing, any event occurs or information becomes known shall have occurred 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package Prospectus 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 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, or (ii) if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any of document incorporated by reference in the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, the Great Wolf Parties will promptly to notify the Initial Purchasers thereof and forthwith prepare Remarketing Agent and, subject upon its request, to paragraph (a) above, file such document and to prepare and furnish without charge to the Initial Purchasers such amendments or supplements Remarketing Agent and to any of dealer in securities as many copies as the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements Remarketing Agent may take the form from time to time reasonably request of an amended or supplemented Final MemorandumProspectus that will correct such statement or omission or 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 may be necessary so that the statements 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 Pricing Disclosure Package as so amended or supplemented will not, in light Issuers complying with (which need not be audited) Section 11(a) of the circumstances Securities Act and the rules and regulations thereunder (including, at the option of the Issuers, Rule 158 under which they were madethe 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, be misleading or so that if any, any Preliminary Prospectus, any Issuer Written Communication will not conflict 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 Pricing Disclosure Package 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 so other advisor retained by the Remarketing Agent such information that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented will comply parties would customarily require in connection with a due diligence investigation conducted in accordance with applicable lawsecurities 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 Great Wolf Parties will, without charge, provide to At the Initial Purchasers and to counsel for the Initial Purchasers as many copies written request of the Pricing Disclosure PackageRemarketing Agent, any Issuer Written Communication between the applicable Commencement Date 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 outstandingapplicable Remarketing Settlement Date, 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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.the Remarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), no Great Wolf Group Member will directly or indirectly offerindirectly, sell, offer, contract or grant any option to sell 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 enter into any transaction which is designed totransfer, or might reasonably 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 Remarketed Notes or securities exchangeable for or convertible into debt securities similar to the Remarketed Notes.
(e) Each of the 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 defined in Rule 405 of the Act, required to 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 filed with the Commission. Any such free writing prospectus consented to in writing by the Issuers or 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 Affiliate Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) The Issuers shall prepare a final term sheet relating to the Remarketed Notes, containing only information that describes the final terms of the 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), 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 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 file such final term sheet within the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(mperiod required by Rule 433(d) 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) Act following the date any Securities are acquired by such final terms have been established for the Issuers or any Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes 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 144this Agreement.
(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. The Great Wolf Parties covenant In consideration of the agreements of ------------------------ the Initial Purchasers contained in this Agreement, each of the Issuers jointly and agree with each Initial Purchaser severally covenants and agrees as follows:
(a) Until To furnish to the last Initial Purchasers, without charge, as many copies of each Memorandum and any supplements and amendments thereto as the Initial Purchasers may reasonably request;
(b) Before amending or supplementing the Final Offering Memorandum subsequent to occur the execution of this Agreement, to furnish to the Initial Purchasers a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which the Initial Purchasers reasonably object;
(ic) If, at any time prior to 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 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 Pricing Disclosure Package and the Final Offering Memorandum to comply with applicable law, the Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Offering Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 deliver such amendment 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.Purchasers;
(d) The Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package Not, and the Final Memorandum.
(f) For so long as not permit any of the Securities remain outstandingits Affiliates to, 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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” security (as defined in the Securities Act) that which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the such Securities.;
(hf) The Parent Guarantors and Except following the Issuers will not, and will not permit any effectiveness of the Subsidiaries Exchange Offer Registration Statement, not to solicit any offer to buy or their respective Affiliates or persons acting on their behalf to, engage in 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.;
(ig) For so long as While any of the Securities remain outstanding and the Issuers are required pursuant outstanding, 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 Issuers will 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.;
(jh) The Great Wolf Parties will To use all commercially reasonable its best 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 and 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) During To use the period beginning on proceeds from the date hereof sale of the Securities in the manner set forth in the Final Offering Memorandum and continuing to in a manner that will not result in any of the date that is 90 days after Issuers becoming an investment company within the meaning of the Investment Company Act, and the rules and regulations of the Commission thereunder; and
(l) Upon consummation of the StyroChem Acquisition and as of the Closing Date, without to cause each of SP Acquisition Co., StyroChem International Inc. and StyroChem International, Ltd. to become a Guarantor within the prior written consent meaning of Deutsche Bank Securities Inc.the Indenture and this Agreement and to sign and become parties to the Indenture, no Great Wolf Group Member will directly or indirectly 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 (or enter into any transaction which is designed todebt security, or might reasonably be expected toany security convertible into or in exchange for, result in any such debt security of the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by any Issuer Company or any of their respective Affiliates such Guarantor (other than any private loan, credit or any person financing agreement with a bank or similar institution, or in privity connection 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 shore transaction Exchange Offer (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 notRegistration Rights Agreements)), 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 for a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under the Act) following 180 days after the date any Securities are acquired by of this Agreement, without the Issuers or any of their Affiliates, none prior written consent 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 144Initial Purchasers.
(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. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsthat:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers Purchaser shall not have reasonably objected in a timely mannergiven its consent. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers Purchaser of the Securities or the Private Exchange Securities Notes and (ii) 180 days after the Closing DatePrivate Exchange Notes Guarantees, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 Company will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party the 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 Purchaser, as soon as they have been prepared, a copy of any available unaudited interim consolidated financial statements of the 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 Great Wolf Group Members Issuers 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 which would require the registration under the Act of the Securities.
(hi) 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.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the Issuers 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Company will use all commercially reasonable its best efforts to (i) permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the 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.
(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 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) 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. The Great Wolf Parties Issuers and each of the Guarantors covenant and agree with each the Initial Purchaser as follows:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers Purchaser shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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, the Issuers and the Guarantors shall not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers Purchaser of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateSecurities, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 Purchaser copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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)Securities.
(g) None of the Great Wolf Group Members 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 which would require the registration under the Act of the Securities.
(h) 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 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.
(i) For so long as any of the Securities remain outstanding 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)outstanding, the 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties Issuers will use all commercially their reasonable 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 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 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.
(ml) None of the Great Wolf Group Members 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.
(nm) For a period of one year two years (calculated in accordance with paragraphs paragraph (d) of Rule 144 under the Act) following the date any Securities are acquired by from the Issuers Issuers, the Subsidiaries or any of their Affiliates, none of the Issuers Issuers, the Guarantors 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. The Great Wolf Parties Issuers covenant and agree with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Great Wolf Parties 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 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, the Issuers shall not be required to qualify as a foreign corporations (or otherwise) corporation, to take any acts which would require it to qualify to do business or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities Notes, the Exchange Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties 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 Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the 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 Notes as set forth under “"Use of Proceeds” " in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are 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 any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 Time of Purchase, the Company will furnish to the Initial Purchasers, as soon as they have been prepared 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 Memorandum.
(h) None of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) The Parent Guarantors and the Issuers will not, and will not permit solicit any offer to buy or offer to sell the Notes by means 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.
(ij) For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the Issuers are required pursuant to meaning of Rule 144(a)(3) under the provisions of Act and not saleable in full under Rule 144 under the Indenture to furnish to Act (or any holder of the Securities, securities analysts or their prospective investors the information required to be delivered pursuant to Rule 144A(d)(4successor provision), the 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities Notes to be included for quotation on PORTAL and (ii) permit the Notes to be eligible for clearance and settlement through The Depository Trust Company.
(kl) During the period beginning on the date hereof The Issuers, TWP and continuing Communications (to the date that is 90 days 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 DateClosing, without subject to 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 qualifications and limitations in the disposition (whether by actual disposition or effective economic disposition due writing that expresses such obligations, and to cash settlement or otherwise) by any Issuer or any of satisfy all conditions precedent on their respective Affiliates or any person in privity with part to the Issuers or any Affiliate obligations of the Issuers), except as provided hereunder, any securities Initial Purchasers under this Agreement to purchase and accept delivery of any Great Wolf Group Member (or guaranteed by any Great Wolf Group Member) that are substantially similar to the SecuritiesNotes.
(lm) 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.
(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
Samples: Securities Purchase Agreement (TWP Capital Corp Ii)
Covenants of the Issuers. The Great Wolf Parties covenant Each of the Issuers, jointly and agree severally, covenants and agrees with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent (which consent shall not be unreasonably withheld). The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateSecurities, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Partiestheir expense, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 any Great Wolf Party the 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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) None Prior to the Closing Date, the Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Great Wolf Group Members or Company for any period subsequent to the pe- riod covered by the most recent financial statements appearing in the Final Memorandum.
(h) 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 which would require the registration under the Act of the Securities.
(hi) 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.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the 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.
(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 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 Great Wolf Group Members Company or the Subsidiaries will take any action prohibited by Regulation M under the Exchange Act (or any of their Affiliates will engage successor provision), in any directed selling efforts (as that term is defined in Regulation S) connection 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 distribution 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 144contemplated hereby.
(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. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsthat:
(a) Until The Issuers will advise the last to occur of Initial Purchaser promptly and (i) the completion of the distribution of the Securities if requested by the Initial Purchasers, (iiPurchaser) the Closing Date and (iii) 180 days after the Closing Date, the Great Wolf Parties will not amend confirm such advice in writing of any amendment or supplement the Pricing Disclosure Package and to the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, supplement amendment or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannersupplement. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution of the Securities by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, Purchaser 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 Company will furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party the 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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)Notes.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchaser, 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 Great Wolf Group Members Issuers 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 which would require the registration of the Securities under the Act of the SecuritiesAct.
(hi) 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 of the Securities within the meaning of Section 4(2) of the ActAct other than the Exchange Offer.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the Issuers 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 Issuers are Company is then subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(jk) The Great Wolf Parties Company will use all commercially reasonable its best efforts to (i) permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the 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 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 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. The Great Wolf Parties Issuers covenant and agree with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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 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, the Issuers shall not be required to qualify as a foreign corporations (or otherwise) corporation, to take any acts which would require it to qualify to do business or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities Notes, the Exchange Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties 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 Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are 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 any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 Time of Purchase, the Company will furnish to the Initial Purchasers, as soon as they have been prepared 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 Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) The Parent Guarantors and the Issuers will not, and will not permit solicit any offer to buy or offer to sell the Notes by means 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.
(ij) For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the Issuers are required pursuant to meaning of Rule 144(a)(3) under the provisions of Act and not saleable in full under Rule 144 under the Indenture to furnish to Act (or any holder of the Securities, securities analysts or their prospective investors the information required to be delivered pursuant to Rule 144A(d)(4successor provision), the 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities Notes to be included for quotation on PORTAL and (ii) permit the Notes to be eligible for clearance and settlement through The Depository Trust Company.
(kl) During the period beginning on the date hereof The Issuers, Holdings and continuing Communications (to the date that is 90 days 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 DateClosing, without subject to 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 qualifications and limitations in the disposition (whether by actual disposition or effective economic disposition due writing that expresses such obligations, and to cash settlement or otherwise) by any Issuer or any of satisfy all conditions precedent on their respective Affiliates or any person in privity with part to the Issuers or any Affiliate obligations of the Issuers), except as provided hereunder, any securities Initial Purchasers under this Agreement to purchase and accept delivery of any Great Wolf Group Member (or guaranteed by any Great Wolf Group Member) that are substantially similar to the SecuritiesNotes.
(lm) 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.
(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
Samples: Securities Purchase Agreement (TWP Capital Corp Ii)
Covenants of the Issuers. The Great Wolf Parties In further consideration of the agreements of the Underwriter herein contained, the Company and the Trust jointly and severally covenant and agree with each Initial Purchaser the Underwriter as follows:
(a) Until To furnish the last to occur of (i) the completion Underwriter, without charge, [two] signed copies of the distribution Registration Statement (including exhibits thereto) and to furnish the Underwriter in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c) below, as many copies of the Securities Prospectus, any documents incorporated by the Initial Purchasers, (ii) the Closing Date reference therein and (iii) 180 days after the Closing Date, the Great Wolf Parties will not amend any supplements and amendments thereto or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and Registration Statement as to which the Initial Purchasers shall not have Underwriter may reasonably objected in a timely manner. The 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersrequest.
(b) The Great Wolf Parties 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in file any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an proposed amendment or supplement to which the Pricing Disclosure Package and Underwriter reasonably objects.
(c) If, during such period after the Final Memorandum that corrects such statement first date of the public offering of the Preferred Securities as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) dealer, any event shall occur or condition shall exist as a result of which any of it is necessary to amend or supplement 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 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, or (ii) if, in the opinion of counsel for the Underwriter, 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 Prospectus to comply with applicable law, forthwith to prepare, file with the Great Wolf Parties Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses the Underwriter will promptly notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (a) above, furnish to the Initial Purchasers such Company) to which Preferred Securities may have been sold by the Underwriter and to any other dealers upon request, either 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 Prospectus so that the statements in any of the Pricing Disclosure Package Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were madewhen the Prospectus is delivered to a purchaser, 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 Prospectus, as so amended or supplemented supplemented, will comply with applicable law.
(d) The Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and time the Final MemorandumRegistration Statement becomes effective.
(f) For so long as any of the Securities remain outstanding, but only so long as the Issuers are subject To make generally available to the covenant in the Indenture to provide reports Trust’s security holders and 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 any Great Wolf Party to the Trustee or to the holders of the Securities and, Underwriter as soon as available, copies of any reports or financial statements furnished to or filed by any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None practicable an earning statement of the 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 Company covering a manner which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) During the twelve month period beginning on the date hereof and continuing to first day of the first full fiscal quarter after the date that is 90 days after the Closing Dateof this Agreement, 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 shore transaction (as defined in Regulation S) the Issuers will not register any transfer of such Securities not made in accordance with earning statement shall satisfy 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.
(mSection 11(a) 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 Securities Act and 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 rules and regulations 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.Commission
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties Issuers and the Guarantor covenant and agree with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Great Wolf Parties 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 Sky” "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 reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, neither the Issuers nor the Guarantor shall not be required to qualify as a foreign corporations (or otherwise) corporation, to take any acts which would require it to qualify to do business or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities Notes, the Exchange Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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, misleading or if it 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 Great Wolf Parties 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 Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the 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 Notes as set forth under “"Use of Proceeds” " in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are 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 any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 Time of Purchase, the Company will furnish to the Initial Purchasers, as soon as they have been prepared 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 Memorandum.
(h) None of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) The Parent Guarantors and the Issuers will not, and will not permit solicit any offer to buy or offer to sell the Notes by means 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.
(ij) For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the Issuers are required pursuant to meaning of Rule 144(a)(3) under the provisions of Act and not saleable in full under Rule 144 under the Indenture to furnish to Act (or any holder of the Securities, securities analysts or their prospective investors the information required to be delivered pursuant to Rule 144A(d)(4successor provision), the 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities Notes to be included for quotation on PORTAL and (ii) permit the Notes to be eligible for clearance and settlement through The Depository Trust Company.
(kl) During The Issuers, Holdings, Communications and the period beginning on the date hereof and continuing Guarantor (to the date that is 90 days 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 DateClosing, without subject to 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 qualifications and limitations in the disposition (whether by actual disposition or effective economic disposition due writing that expresses such obligations, and to cash settlement or otherwise) by any Issuer or any of satisfy all conditions precedent on their respective Affiliates or any person in privity with part to the Issuers or any Affiliate obligations of the Issuers), except as provided hereunder, any securities Initial Purchasers under this Agreement to purchase and accept delivery of any Great Wolf Group Member (or guaranteed by any Great Wolf Group Member) that are substantially similar to the SecuritiesNotes.
(lm) 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.
(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
Samples: Securities Purchase Agreement (Target Directories of Michigan Inc)
Covenants of the Issuers. The Great Wolf Parties covenant Each of the Issuers, on behalf of itself and agree with each Initial Purchaser as followsits Subsidiaries, hereby agrees:
(a) Until the last At any time prior to occur of (i) the completion of the distribution sale of the Securities 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 Closing Date 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) 180 days after if at any time any state securities commission or other regulatory authority shall issue an order suspending the Closing Date, the Great Wolf Parties will not amend qualification or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to exemption from qualification of any written communication (as defined under Rule 405 of the Act) that constitutes an offer Units under any such laws, use its commercially reasonable efforts to sell obtain the withdrawal or a solicitation lifting of an offer to buy such order at 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersearliest possible time.
(b) The Great Wolf Parties will cooperate with To (i) furnish the Initial Purchasers in arranging for the qualification Purchaser, without charge, as many copies of the Securities for offering Final Offering Circular, and sale under the securities any amendments or “Blue Sky” laws of which jurisdictions supplements thereto, 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; providedreasonably request, however, that in connection therewith, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after 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 DateDate 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 Pricing Disclosure Package and 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 Pricing Disclosure Package and the Final Memorandum Offering Circular to comply with applicable lawApplicable Law, the Great Wolf Parties will promptly notify the Initial Purchasers thereof and will to prepare, at the expense of the Great Wolf PartiesCompany, an appropriate amendment or supplement to the Pricing Disclosure Package Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that (A) as so amended or supplemented, the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would Offering Circular will not include any an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and (B) the Final Offering Circular will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or any Issuer Written Communication would conflict with advisable to amend or supplement the Pricing Disclosure Package 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 to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Final Offering Circular, as then so amended or supplemented, or (ii) it is necessary to amend or supplement any of will contain the Pricing Disclosure Package so that any of information specified in, and meet the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable lawrequirements of, 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 Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably requestRule.
(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 Pricing Disclosure Package and 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, but only so long as Offering or 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration transactions contemplated under the Act of the Securities.
(h) The Parent Guarantors and the Issuers will notDocuments are consummated or this Agreement is terminated, 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.
to pay (i) For so long as any of the Securities remain outstanding all costs, expenses, fees and the Issuers are required pursuant taxes incident 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
connection with: (j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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.
(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.the
Appears in 1 contract
Samples: Purchase Agreement (Hockey Co)
Covenants of the Issuers. The Great Wolf Parties Issuers, jointly and severally, covenant and agree with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute make any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesCompany, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Company will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any two years following the offering 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 SecuritiesNotes, the Great Wolf Parties Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party the 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 Issuers for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Great Wolf Group Members 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) The Parent Guarantors and the Issuers Company 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) 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.
(ij) For so long as any of the Securities Notes remain outstanding 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)outstanding, the Issuers 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Company will use all commercially its reasonable efforts to (i) permit the Notes to be designated as Portal-eligible securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the NASD's Private Offering Resales and Trading through Automatic Linkages Market (the "Portal Market") and (ii) permit the Notes 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 Notes offered and sold in an off 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) None During the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Great Wolf Group Members or Initial Purchasers, not to, and not permit any of their Affiliates will engage in any directed selling efforts affiliates (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 Securities Act) following to, resell any of the date any Securities are acquired Notes that have been reacquired by them, except for Notes purchased 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 affiliates and resold in a registration statement which is effective transaction registered under the Securities 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
Samples: Purchase Agreement (Mobile Mini Inc)
Covenants of the Issuers. The Great Wolf Parties covenant Each Issuer and agree Guarantor covenants and agrees with each Initial Purchaser you as follows:
(a) Until Each Issuer and Guarantor will cooperate with the last Underwriters in endeavoring to occur qualify the Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that no Issuer or Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified 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.
(ib) 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) The Issuers have furnished or will furnish to the Underwriters such number of copies of the Prospectus as the Underwriters may reasonably request, 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 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 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 Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing Date, the Great Wolf Parties will not amend Act or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable delivered in connection with the resale of the Securities by the Initial Purchasers.
(b) The 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 sales of the Securities; provided, however, that in connection therewith, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any it is necessary, in the reasonable opinion of counsel for the Pricing Disclosure Package as then amended 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 or omit to state any 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 misleading or any Issuer Written Communication would conflict with existing at the Pricing Disclosure Package as then amended or supplementedtime it is delivered to a purchaser, or (ii) if 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 any the Prospectus in order to comply with the requirements of the Pricing Disclosure Package so that any of Act or the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable lawAct Regulations, the Great Wolf Parties Issuers will promptly notify prepare and file with the Initial Purchasers thereof and forthwith prepare andCommission, subject to paragraph (a) aboveSection 3(b), furnish to the Initial Purchasers such amendments amendment 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) supplement as may be necessary so that to correct such statement or omission or to make the statements in any of Registration Statement or 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 Prospectus comply with applicable law.
(d) The Great Wolf Parties willsuch requirements, and the Issuers will 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 Pricing Disclosure Package, any Issuer Written Communication 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 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 Prospectus is required to be delivered under the Act or the Exchange Act, Sun International and each of its subsidiaries will, as required, file promptly all documents required to be filed with the Commission pursuant to Rule 144A(d)(4)Section 13, the Issuers will make available at its expense14, 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jf) The Great Wolf Parties will Issuers will, if requested by the Underwriters, use all commercially reasonable their best efforts in cooperation with the Underwriters to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(kg) During Sun International will, for the shorter of the period beginning on the date hereof Securities remain outstanding and continuing five years from the Closing Date, deliver to the date that is 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 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 regulations thereunder.
(j) For a period of 90 days after the Closing Datedate of this Agreement, except as described in or contemplated by the Prospectus, the Issuers will not, without the your prior written consent of Deutsche Bank Securities Inc.(which consent will not be unreasonably or untimely withheld), no Great Wolf Group Member will directly or indirectly offerissue, sell, contract offer or agree to sell sell, or otherwise dispose of, directly or indirectly, any debt securities 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 their subsidiaries (other than the IssuersSecurities) (it being understood that debt incurred under the Existing Credit Agreement is not a debt security.), except as provided hereunder, any securities
(k) The Issuers and the Guarantors will not claim the benefit of any Great Wolf Group Member (usury laws against any holders of Securities or guaranteed by any Great Wolf Group Member) that are substantially similar to the SecuritiesGuarantees, respectively.
(l) 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 timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of such Securities not made in accordance with Section 11(a) of 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 securitiesAct.
(m) None 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 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
Samples: Purchase Agreement (Sun International North America Inc)
Covenants of the Issuers. The Great Wolf Parties covenant Each of the Issuers, jointly and agree severally, covenants and agrees with each the Initial Purchaser as followsPurchasers that:
(a) Until the last to occur of (i) the completion None 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 Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum Offering Circular or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which will not be unreasonably withheld. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateSecurities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and 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 Pricing Disclosure Package and the Final Memorandum Offering Circular to comply with applicable law, the Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum Offering Circular that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Each of the Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final MemorandumOffering Circular.
(f) For so long as any of the Securities remain outstandingoutstanding (but in no event longer than five years), 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 any Great Wolf Party 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 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 Offering Circular.
(h) None of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) 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 Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties Issuers will use all commercially their reasonable best efforts to (i) assist the Initial Purchasers in permitting the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the Private Offerings, Resales and Trading through Automated Linkages system (the "PORTAL System") and (ii) permit the Securities Notes 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 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. The Great Wolf Parties covenant Each of the Issuers covenants and agree agrees with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Dateif applicable), 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Issuers 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 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 Great Wolf Group Members Issuers 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 which that would require the registration under the Act of the Securities.
(hi) The Parent Guarantors and None of the Issuers will notwill, and will not permit any of the its 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.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the 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.
(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 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.
(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. The Great Wolf Parties covenant Each of the Issuers covenants and agree agrees with each the Initial Purchaser as followsthat:
(a) Until the last to occur of (i) the completion Each 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 Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers Purchaser shall not have reasonably objected in a timely mannergiven its consent. The Great Wolf Parties 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial PurchasersPurchaser.
(b) The Great Wolf Parties 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, each of the Issuers shall not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers Purchaser of the Securities Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers Purchaser thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Company will, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and 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, 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 Purchaser copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party 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 Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Issuers 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).
(gh) Prior to the Closing Date, each of the Issuers will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of any unaudited interim financial statements, if any, of each of the Issuers, as applicable, for any period subsequent to the period covered by the most recent financial statements appearing in the Memorandum.
(i) None of the Great Wolf Group Members Issuers 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 which would require the registration under the Act of the SecuritiesNotes.
(hj) The Parent Guarantors and Each of 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 Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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. The Great Wolf Parties Issuers and the Guarantor covenant and agree with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Great Wolf Parties 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 Sky” "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 reasonably necessary to complete the resale of the SecuritiesNotes; provided, however, that in connection therewith, neither the Issuers nor the Guarantor shall not be required to qualify as a foreign corporations (or otherwise) corporation, to take any acts which would require it to qualify to do business or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities Notes, the Exchange Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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, 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 Great Wolf Parties 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 Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for to the Initial Purchasers as many copies of the 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 Notes as set forth under “"Use of Proceeds” " in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are 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 any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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) None of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(h) The Parent Guarantors and the Issuers will not, and will not permit solicit any offer to buy or offer to sell the Notes by means 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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
Samples: Securities Purchase Agreement (TWP Capital Corp Ii)
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) Until The Issuers will prepare the last 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 without first furnishing to occur the Representatives a copy of such proposed amendment or supplement and will not use any amendment or supplement to which the Representatives may object.
(ib) The Issuers will furnish to the Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale and during the period referred to in paragraph (c) below, without charge, as many copies of the Preliminary Memorandum and the Offering Memorandum and any amendments and supplements thereto as they reasonably may request.
(c) Before making, 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 distribution of the Securities Notes 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, if any event occurs or information becomes known condition exists as a result of which the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum Offering Memorandum, as then amended or supplemented would include any untrue statement of a material factsupplemented, 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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, not misleading, or if it should be misleading necessary to amend or so that any Issuer Written Communication supplement the Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Issuers will not conflict with promptly (i) notify the Pricing Disclosure Package Initial Purchasers of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and provide to the Initial Purchasers, at their own expense, an amendment or supplement to the Preliminary Memorandum or the Offering Memorandum, so that the Pricing Disclosure Package statements in the Preliminary Memorandum or any Issuer Written Communication the Offering Memorandum as so amended or 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 Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and 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, 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 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 any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Issuers will likewise notify the 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 Great Wolf Party to nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Trustee Securities Act) or to the holders (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 Securities andNotes, as soon as availablethe Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports or and financial statements furnished to or filed by any Great Wolf Party with the Commission or any national securities exchange on which any class required to be delivered to the Trustee or holders of securities of any Great Wolf Party may be listedthe Notes pursuant to the Indenture or otherwise; provided provided, however, that the foregoing obligation shall not apply to any if such reports or other communication (including financial statements) that statements are made publically available on the Commission’s XXXXX database), delivery to the Initial Purchasers shall not be required.
(g) None 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 Great Wolf Group Members Notes that constitute “restricted securities” under Rule 144 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.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers 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, 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 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 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 which would require the registration under the Securities Act of the SecuritiesNotes.
(hl) 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.
(i) For so So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities remain outstanding and Act, at any time that 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 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 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.)
(m) The Issuers will 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.
(jn) The Great Wolf Parties Until completion of the distribution, neither the Issuers nor any of their Affiliates will use all commercially reasonable efforts take, directly or indirectly, any action designed to permit cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the Securities price of any security of the Issuers to be eligible for clearance and settlement through The Depository Trust Companyfacilitate the sale or resale of the Notes.
(ko) During the period beginning on the date hereof and continuing Each Note will bear a legend substantially to the date that is 90 days after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes 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, without the prior written consent of Deutsche Bank Securities Inc.AS AMENDED (THE “SECURITIES ACT”), no Great Wolf Group Member 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) PURSUANT TO CLAUSE (D) 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) IN 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.
(p) The Issuers will not, directly or indirectly 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 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 Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or enter into any transaction which is designed successor form to the Representatives.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an 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 might reasonably be expected toan agent of, 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 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 Issuers)transactions contemplated hereby, except as provided hereunder, any securities of any Great Wolf Group Member (and the Initial Purchasers shall have no responsibility or guaranteed by any Great Wolf Group Member) that are substantially similar liability to the Securities.
(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.
(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 Guarantors with respect thereto. Any review by the Initial Purchasers 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 counselGuarantors, the buyer transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Securities is the Initial Purchasers and shall not acquiring “restricted securities” under Rule 144be on behalf of the Issuers or the Guarantors.
(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. The Great Wolf Parties Each of the Issuers covenant and agree with each the Initial Purchaser Purchasers as follows:
(a) Until The Issuers will furnish to the last 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 to occur 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 (ix) 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 distribution placement of the Securities by the Initial PurchasersPurchasers 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 disclosed in the Closing Date Offering Memorandum and (iii) 180 days after the Closing Date, the Great Wolf Parties will not amend are required to be so disclosed. In such event or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to if at any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties will promptly, upon the reasonable request completion of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale placement of the Securities by the Initial Purchasers.
Purchasers to purchasers who are not its affiliates (b) The 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale determined by the Initial Purchasers of the Securities or the Private Exchange Securities and (iiPurchasers) 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any it is reasonably necessary, in the opinion of the Pricing Disclosure Package Company, counsel for the Company, 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 would supplemented, will not include any an untrue statement of a material fact or omit to state any 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 or any Issuer Written Communication would conflict with if in the Pricing Disclosure Package as then amended opinion of the Company, counsel for the Company, the Initial Purchasers or supplementedcounsel for the Initial Purchasers, such amendment or (ii) it supplement 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 andIssuers will, subject to paragraph (ab) aboveof this Section 5, furnish 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 reasonably satisfactory to the Representative and counsel to the Initial Purchasers such amendments and whose consent thereto shall not be unreasonably withheld 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 delayed), so that the statements in any of the Pricing Disclosure Package as so amended or supplemented supplemented, the statements in the Offering Memorandum will notnot 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 under which they were madeexisting at the time it is delivered to a purchaser, be not 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 such Offering Memorandum as so amended or supplemented will comply with applicable law.
(d) The Great Wolf Parties will, without chargeas the case may be, provide and furnish to the Initial Purchasers and to counsel for the Initial Purchasers as many such number of copies of the Pricing Disclosure Package, any Issuer Written Communication 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.
(ed) The Issuers will apply the net proceeds from the sale None of the Securities as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as Issuers nor any of their affiliates (as defined in Rule 501(b) under the Securities remain outstanding, but only so long as the Issuers are subject Act ("Affiliates")) will solicit any offer to the covenant in the Indenture buy or offer to provide reports to the Trustee or to the holders of sell the Securities, the Great Wolf Parties will furnish to Exchange Securities or the Initial Purchasers copies Private Exchange Securities, if any, by means of all reports and other communications (financial or otherwise) furnished by 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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.of
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties covenant Each of the Issuers, jointly and agree severally, covenants and agrees with each the Initial Purchaser as followsPurchasers that:
(a) Until the last to occur of (i) the completion None 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 Issuers will not amend or supplement the Pricing Disclosure Package and the Final Offering Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which will not be unreasonably withheld. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateSecurities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and 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 Pricing Disclosure Package and the Final Offering Memorandum to comply with applicable law, the Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Offering Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Each of the Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final Offering Memorandum.
(f) For so long as any of the Securities remain outstandingoutstanding (but in no event longer than five years), 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 any Great Wolf Party 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 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 Offering Memorandum.
(h) None of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) 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 Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties Issuers will use all commercially their reasonable best efforts to (i) assist the Initial Purchasers in permitting the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the Private Offerings, Resales and Trading through Automated Linkages system (the "PORTAL System") and (ii) permit the Securities Notes 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 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. The Great Wolf Parties Issuers covenant and agree agree, jointly ------------------------- and severally, with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected object to in writing; any objection to such amendment or supplement shall be made within two business days after receiving a timely mannerdraft copy thereof. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Great Wolf Parties 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, therewith neither of the Issuers shall not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 Notes as set forth under “"Use of Proceeds” " in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any a period of one year after the Securities remain outstandingClosing Date, 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 any Great Wolf Party 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 Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Issuers 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) None of the Great Wolf Group Members Issuers 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 which would require the registration under the Act of the SecuritiesNotes.
(h) 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 Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(i) For so So long as any of the Securities Notes remain outstanding and the Issuers are required have not been registered 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)Act, the 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties Issuers will use all commercially their respective reasonable best efforts to (i) permit the Securities Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Notes 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 Notes 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.
(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. The Great Wolf Parties Each of the Issuers covenant and agree with each the Initial Purchaser Purchasers as follows:
(a) Until The Issuers will furnish to the last 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 at any time make any amendment or supplement to occur the Preliminary Offering Memorandum or the Offering Memorandum without the prior written consent of the Initial Purchasers.
(ic) the If at any time prior to 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 Purchasers to purchasers who are not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication its affiliates (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 determined by the Initial Purchasers Purchasers) any event shall previously have been advised and furnished occur or condition shall exist as a copy for a reasonable period result of time prior to which it is necessary, in the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties will promptly, upon 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 Pricing Disclosure Package 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 Final 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 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 may 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 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 Great Wolf Parties 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 Sky” "blue 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, no event shall any of the Issuers shall be 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 so qualify as foreign corporations but for this Section 5(k), (or otherwiseii) or to execute file any general consents consent to service of process in any jurisdiction where it is not at the Closing Time then so subject or (iii) subject themselves itself to taxation in any such jurisdiction where if it is not then so subject.
(1) If, at any time prior to . The Issuers will file such statements and reports as may be required by the latest laws of (i) each jurisdiction in which the completion of the sale by 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 Private Exchange Securities and institution, threatening or contemplation of any proceeding for such purpose.
(iil) 180 days after From the date hereof to the Closing DateTime, 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 none of the circumstances under which they were madeIssuers 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 the Subsidiaries or the business, not misleadingfinancial condition, assets, liabilities (contingent or if for otherwise), results of operations or prospects of the Issuers or any other reason it is necessary at any time to amend or supplement of the Pricing Disclosure Package and Subsidiaries, without the Final Memorandum to comply with applicable law, the Great Wolf Parties will promptly notify prior consent of the Initial Purchasers thereof and will prepare(which consent shall not be unreasonably withheld), at unless in the expense judgment of the Great Wolf PartiesIssuers and their counsel, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 after notification to the Initial Purchasers Purchasers, such amendments press release, communication 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 conference is required by law.
(dm) The Great Wolf Parties will, without charge, provide to Company will use the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 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 the Pricing Disclosure Package and the Final Memorandum."
(fn) For so long as any The Issuers shall not, for a period of 180 days from the date 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 DateOffering Memorandum, without the prior written consent of Deutsche Bank Securities Inc.the Initial Purchasers, no Great Wolf Group Member will directly or indirectly indirectly, offer, sell, contract grant any option to sell purchase or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in debt securities of the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by any Issuer Company or any of their respective Affiliates or any person in privity with the Issuers or any Affiliate of Subsidiaries (other than the IssuersExchange Securities and the Private Exchange Securities, if any), 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.
(lo) In connection with Securities offered The Company agrees, at its expense, (i) as soon as practicable after the Closing Time 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 concurrent with the provisions filing 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) a registration statement with respect to the Exchange Securities or the Securities.
(n) For a period of one year (calculated in accordance with paragraphs (d) of Rule 144 , as the case may be, under the Act) following the date any Securities are acquired by the Issuers or any of their AffiliatesRegistration Rights Agreement, none of the Issuers or any of their Affiliates it will sell any such Securities, unless (i) such Securities are sold pursuant to prepare a registration statement which is under the Act in connection with the market-making activities of Xxxxxxx Xxxxx with respect to the Exchange Securities or 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, Act as soon as practicable thereafter or (ii) in lieu of the written opinion of reputable counselregistration statement in clause (i) hereof, the buyer Company will 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 Exchange Securities or the Securities, as 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 long 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 Securities is not acquiring “restricted securities” under Rule 144.
(o) Each Great Wolf Party shall use commercially reasonable efforts registration statement, a letter addressed 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 Xxxxxxx Xxxxx dated such date covering matters described in Section 5(g) hereof, modified as appropriate to reflect the Pricing Disclosure Packageregistered nature of 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 filed with the Commission pursuant to Section 13 or 15 of the Exchange Act as Xxxxxxx Xxxxx shall reasonably request in connection with its market-making activities. If a "qualified independent underwriter" is required by the National Association of Securities Dealers, Inc. (the "NASD") in connection with such market-making activities, the Company 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 by the Company.
Appears in 1 contract
Samples: Purchase Agreement (Blue Bird Corp)
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each Initial Purchaser as follows:
(a) Until If and to the last 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 occur be registered under the Securities Act as in effect at the time of the Remarketing, the Issuers shall:
(i) prepare the completion of Registration Statement and the distribution of Prospectus, in a form approved by the Remarketing Agent, file any such Prospectus pursuant to the Securities Act within the period required by the Initial Purchasers, 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 Closing Date and 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 or the Remarketing Agent, be required by the Securities Act or requested by the Commission;
(iii) 180 days advise the Remarketing Agent, promptly after the Closing Datethey receive notice thereof, the Great Wolf Parties will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Acttime 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 to furnish the Remarketing Agent with copies thereof;
(iv) that constitutes an offer file promptly all reports and any definitive proxy or information statements required to sell or a solicitation of an offer to buy be filed by the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report Unit Issuer with the Commission under pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior subsequent to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties 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 Pricing Disclosure Package and 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 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 Great Wolf Parties will cooperate with the Initial Purchasers Preliminary Prospectus and any amended or supplemented Preliminary Prospectus; (c) the Prospectus and any amended or supplemented Prospectus; and (d) any document incorporated by reference 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 SecuritiesProspectus (excluding exhibits thereto); providedand, however, that in connection therewith, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, if at any time prior when delivery of a prospectus (or in lieu thereof, the notice referred to the latest of (iin Rule 173(a) the completion of the sale by the Initial Purchasers of under the Securities or Act) is required in connection with the Private Exchange Securities and (ii) 180 days after the Closing DateRemarketing, any event occurs or information becomes known shall have occurred 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package Prospectus 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 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, or (ii) if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any of document incorporated by reference in the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, the Great Wolf Parties will promptly to notify the Initial Purchasers thereof and forthwith prepare Remarketing Agent and, subject upon its request, to paragraph (a) above, file such document and to prepare and furnish without charge to the Initial Purchasers such amendments or supplements Remarketing Agent and to any of dealer in securities as many copies as the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements Remarketing Agent may take the form from time to time reasonably request of an amended or supplemented Final MemorandumProspectus that will correct such statement or omission or 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 may be necessary so that the statements 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 Pricing Disclosure Package as so amended or supplemented will not, in light Unit Issuer complying with (which need not be audited) Section 11(a) of the circumstances Securities Act and the rules and regulations thereunder (including, at the option of the Unit Issuer, Rule 158 under which they were madethe 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, be misleading or so that if any, any Preliminary Prospectus, any Issuer Written Communication will not conflict 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 Pricing Disclosure Package transactions contemplated hereby, and to make reasonably available to the Remarketing Agent and any accountant, attorney or so other advisor retained by the Remarketing Agent such information that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented will comply parties would customarily require in connection with a due diligence investigation conducted in accordance with applicable lawsecurities 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 Great Wolf Parties willAt the written request of the Remarketing Agent, between the applicable Commencement Date and the applicable Reset Effective Date, the Issuers will 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 Pricing Disclosure Package, any Issuer Written Communication 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 as set forth under “Use of Proceeds” in the Pricing Disclosure Package Remarketing Agent, and the Final MemorandumRemarketing 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 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 Issuers 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, but only so long as Remarketed Notes after providing the Issuers are subject Remarketing Agent and its legal counsel with a reasonable opportunity 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 review and other communications comment on such final term sheet (financial or otherwise) furnished by 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 such final term sheet to be delivered pursuant to Rule 144A(d)(4), in form and substance as last reviewed by the Issuers will make available at its expense, upon request, to any holder of such Securities Remarketing Agent and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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 file such final term sheet within the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(mperiod required by Rule 433(d) 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) Act following the date any Securities are acquired by such final terms have been established for the Issuers or any Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes 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 144this Agreement.
(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
Samples: Purchase Contract and Pledge Agreement (Assured Guaranty LTD)
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsthat:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer supplement thereto as to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers Purchaser shall not have reasonably objected in a timely mannergiven its consent, which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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, the Issuers neither Issuer shall not be required to qualify as a foreign corporations (corporation or otherwise) foreign limited partnership, as the case may be, or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers Purchaser of the Securities Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties 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 Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers Purchaser and to counsel for to the Initial Purchasers Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of and during the Securities remain period ending on the date no Notes are 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 Purchaser copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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)Notes.
(g) None Neither of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(h) The Parent Guarantors and the Issuers will not, and will not permit solicit any offer to buy or offer to sell the Notes by means 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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. The Great Wolf Parties covenant Each Issuer and agree Guarantor covenants and agrees ------------------------ with each Initial Purchaser you as follows:
(a) Until As promptly as practicable after the last date hereof, the Issuers agree to occur prepare the Offering Memorandum. The Issuers shall use their commercially reasonable best efforts to deliver such Offering Memorandum to the Initial Purchasers by 9:00 a.m., New York City time, on May 14, 2002, and in no event shall such Offering Memorandum be delivered later than three business days prior to the Closing Date (such date of delivery being herein referred to as the "Delivery Date").
(ib) Each Issuer and Guarantor will cooperate with the Initial Purchasers in endeavoring to qualify the Offered Securities for sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided, that no Issuer or Guarantor shall -------- be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified 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) At any time prior to the completion of the distribution of the Offered Securities by the Initial Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing DatePurchasers to purchasers who are not affiliates thereof, the Great Wolf Parties Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 give the Initial Purchasers shall previously have been advised and furnished a copy for 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 period amount of time prior to the such proposed amendmentfiling or use, and will not use any such amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale Purchasers shall reasonably object within five days of the Securities by the Initial Purchasersbeing furnished a copy thereof.
(bd) The Great Wolf Parties Issuers 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subjectreasonably request.
(1e) If, at At any time prior to the latest of (i) the completion of the sale 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 Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, happening of 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 that makes any untrue statement of a material fact, fact made in the Offering Memorandum (as amended or omit supplemented from time to state a material fact necessary 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 the light of the circumstances under which they were made, not misleading. If, or if for during the period specified in the first sentence of this paragraph, any other reason event shall occur as a result of which it is necessary at any time necessary, in the reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Pricing Disclosure Package and Offering Memorandum in order to make the Final Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to comply with applicable lawa purchaser, the Great Wolf Parties Issuers will promptly notify forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers thereof and will preparePurchasers) so that, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact or omit to state any 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, 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 Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 a reasonable number of copies of all reports and other communications such amendment or supplement.
(financial or otherwisef) furnished by At any Great Wolf Party time prior to the Trustee or to the holders completion of the distribution of the Offered 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 any Great Wolf Party with the Commission pursuant to Section 13, 14, or any national securities exchange on which any class 15(d) of securities of 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)Exchange Act.
(g) None of Sun International, SINA, the Great Wolf Group Members Guarantors or their subsidiaries will solicit any offer to buy or offer or sell the Offered Securities by means of any form of general solicitation or general advertising.
(h) None of Sun International, SINA, the Guarantors or their subsidiaries or any affiliate of their Affiliates any of 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 which that would require the registration under the Act of the Securities.
(h) 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 Offered Securities 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.
(i) For 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, or will permit any "affiliate" (as defined in Rule 144 under the Act) 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 a transaction registered under the Act.
(j) Sun International and SINA will, so long as any of the Offered Securities remain are outstanding and are "restricted securities" within the Issuers are required pursuant to the provisions meaning 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 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)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Issuers are then Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is 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.
(jk) The Great Wolf Parties will Issuers will, if requested by the Initial Purchasers, use all commercially reasonable their best efforts in cooperation with the Initial Purchasers to permit the Offered Securities to be eligible for clearance and settlement through The Depository Trust Company.
(kl) During Each of the period beginning on Offered Securities will bear the date hereof and continuing legend contained or 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 be contained in "Notice to sell or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result Investors" 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 Offering Memorandum and upon the Issuers or any Affiliate of the Issuers)other terms stated therein, 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 shore transaction (as defined in Regulation S) the Issuers will not register any transfer of after such Securities not made in accordance with are resold or exchanged pursuant to a registration statement effective under 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 securitiesAct.
(m) None Sun International will, for the shorter of the Great Wolf Group Members 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 Affiliates will engage in securityholders or filed with any directed selling efforts (as that term is defined in Regulation S) with respect securities exchange pursuant to the Securitiesrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act.
(n) For a period The Issuers shall apply the net proceeds of one year their sale of the Offered Securities to the purchase of the Issuers' 9% Senior Subordinated Notes due 2007 (calculated the "9% Notes") tendered in 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 tendered upon completion of the Tender Offer 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 terms of the Issuers or any of their Affiliates will sell any such SecuritiesIndenture relating to the 9% Notes, 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 144as 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, 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 Great Wolf Party shall 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 Securities Initial Purchasers not later than the Dxxxxxxy Xxxx xxe letter described in Section 5(j) addressed to be secured by first priority liens the Initial 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, Sun International will cause each Guarantor to execute an amendment to this Agreement in the form of Exhibit 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 Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Packagedate hereof.
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) Until The Issuers will prepare the last 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 occur the Representative a copy of such proposed amendment or supplement and will not use any amendment or supplement to which the Representative may reasonably object.
(ib) The Issuers will furnish to the Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale and during the period referred to in paragraph (c) below, without charge, as many copies of the Preliminary Memorandum and the Offering Memorandum and any amendments and supplements thereto as they reasonably may request.
(c) At any time prior to the completion of the distribution of the Securities Notes 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, if any event occurs or information becomes known condition exists as a result of which the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum Offering Memorandum, as then amended or supplemented would include any untrue statement of a material factsupplemented, 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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, not misleading, or if it should be misleading necessary to amend or so that any Issuer Written Communication supplement the Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Issuers will not conflict with promptly (i) notify the Pricing Disclosure Package Initial Purchasers of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and provide to the Initial Purchasers, at their own expense, an amendment or supplement to the Preliminary Memorandum or the Offering Memorandum, as the case may be, so that the Pricing Disclosure Package Preliminary Memorandum or any Issuer Written Communication 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 will comply with applicable lawor amended Preliminary Memorandum or Offering Memorandum to the Initial Purchasers and Counsel for the Initial Purchasers, without charge, in such quantities as may be reasonably requested.
(d) The Great Wolf Parties will, without charge, provide to Issuers 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 Pricing Disclosure Packagereceipt 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, any Issuer Written Communication 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 Pricing Disclosure Package and 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, but only so long as none of Parent, 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the Great Wolf Group Members 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.
(i) None of Parent, 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.
(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 which would require the registration under the Securities Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust CompanyNotes.
(k) During Parent and the period beginning on Issuers will apply the date hereof net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Preliminary Memorandum and continuing the Offering Memorandum.
(l) Until completion of the distribution, neither Parent nor the Issuers 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.
(m) Each Note will bear a legend substantially to the date that is 90 days after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes are no longer subject to the restrictions on transfer described therein: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, without the prior written consent of Deutsche Bank Securities Inc.AS AMENDED (THE “SECURITIES ACT”), no Great Wolf Group Member 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, directly or indirectly 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 debt securities of an 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 warrants to purchase debt securities of any Great Wolf Group Member (or guaranteed by any Great Wolf Group Member) that are an Issuer substantially similar to the Securities.
Notes (lother than the Notes offered pursuant to this Agreement) 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.
(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 for a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under the Act) following 60 days after the date any Securities are acquired by hereof, without the Issuers or any of their Affiliates, none prior written consent 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 144Representative.
(o) Each Great Wolf Party 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 Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or any successor form to the Representative.
(p) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an 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 use commercially reasonable efforts 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 Securities Notes to be secured by first 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 Pricing Disclosure PackageOffering 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. The Great Wolf Parties covenant Each of the Issuers covenants and agree agrees with each the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent which consent shall not be unreasonably withheld. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties 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, the Issuers shall not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so qualified or subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Securities Notes 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 any Great Wolf Party 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 Great Wolf Party of the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party either of the Issuers 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 Issuers will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Issuers for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Great Wolf Group Members Issuers 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 which would require the registration under the Act of the Securities.
(hi) The Parent Guarantors and None of 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 Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities to be designated PORTAL 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 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. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) Until The Issuers will prepare the last 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 without first furnishing to occur the Representatives a copy of such proposed amendment or supplement and will not use any amendment or supplement to which the Representatives may object.
(ib) The Issuers will furnish to the Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale and during the period referred to in paragraph (c) below, without charge, as many copies of the Preliminary Memorandum and the Offering Memorandum and any amendments and supplements thereto as they reasonably may request.
(c) Before making, 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 distribution of the Securities Notes 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, if any event occurs or information becomes known condition exists as a result of which the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum 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 Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum Offering Memorandum, to comply with applicable law, the Great Wolf Parties 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 Great Wolf Partiestheir own expense, an amendment or supplement to the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 thereinOffering Memorandum, 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 Preliminary Memorandum or the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances under which they were madewhen the Preliminary Memorandum or the Offering Memorandum is delivered to a purchaser, be misleading or so that any Issuer Written Communication will not conflict with the Pricing Disclosure Package Preliminary Memorandum or so that the Pricing Disclosure Package or any Issuer Written Communication Offering Memorandum, as so amended or supplemented supplemented, will comply with applicable law.
; and (diii) The Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and 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, 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 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 any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Issuers will likewise notify the 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 Great Wolf Party to nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Trustee Securities Act) or to the holders (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 Securities andNotes, as soon as availablethe Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports or and financial statements furnished to or filed by any Great Wolf Party with the Commission or any national securities exchange on which any class required to be delivered to the Trustee or holders of securities of any Great Wolf Party may be listedthe Notes pursuant to the Indenture or otherwise; provided provided, however, that the foregoing obligation shall not apply to any if such reports or other communication (including financial statements) that statements are made publically available on the Commission’s 's XXXXX database), delivery to the Initial Purchasers shall not be required.
(g) None 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 Great Wolf Group Members Notes that constitute “restricted securities” under Rule 144 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.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers 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, 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 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 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 which would require the registration under the Securities Act of the SecuritiesNotes.
(hl) 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.
(i) For so So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities remain outstanding and Act, at any time that 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 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 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.)
(m) The Issuers will 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.
(jn) The Great Wolf Parties Until completion of the distribution, neither the Issuers nor any of their Affiliates will use all commercially reasonable efforts take, directly or indirectly, any action designed to permit cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the Securities price of any security of the Issuers to be eligible for clearance and settlement through The Depository Trust Companyfacilitate the sale or resale of the Notes.
(ko) During the period beginning on the date hereof and continuing Each Note will bear a legend substantially to the date that is 90 days after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes 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, without the prior written consent of Deutsche Bank Securities Inc.AS AMENDED (THE “SECURITIES ACT”), no Great Wolf Group Member 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) PURSUANT TO CLAUSE (D) 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) IN 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.
(p) The Issuers will not, directly or indirectly 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 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 Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or enter into any transaction which is designed successor form to the Representatives.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an 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 might reasonably be expected toan agent of, 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 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 Issuers)transactions contemplated hereby, except as provided hereunder, any securities of any Great Wolf Group Member (and the Initial Purchasers shall have no responsibility or guaranteed by any Great Wolf Group Member) that are substantially similar liability to the Securities.
(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.
(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 Guarantors with respect thereto. Any review by the Initial Purchasers 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 counselGuarantors, the buyer transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Securities is the Initial Purchasers and shall not acquiring “restricted securities” under Rule 144be on behalf of the Issuers or the Guarantors.
(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. The Great Wolf Parties Issuers covenant and agree with each ------------------------ the Initial Purchaser as followsthat:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers Purchaser shall not have reasonably objected in a timely mannergiven its consent. The Great Wolf Parties will Issuers shall, promptly, upon the reasonable request of the Initial Purchasers Purchaser or counsel for the Initial PurchasersPurchaser, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties will Issuers 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers Purchaser of the Securities Notes or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties will Issuers shall promptly notify the Initial Purchasers Purchaser thereof and will shall prepare, at the expense of the Great Wolf Partiestheir own expense, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties willIssuers shall, without charge, provide to the Initial Purchasers Purchaser and to counsel for the Initial Purchasers Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 shall furnish to the Initial Purchasers Purchaser copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Issuers 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) None Prior to the Closing Date, the Issuers shall furnish to the Initial Purchaser, as soon as they have been prepared by the Company and are available, a copy of any unaudited interim consolidated financial statements of the Great Wolf Group Members or Issuers for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) 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 which would require the registration under the Act of the Securities.
(hi) The Parent Guarantors and Except as required by the terms of the Registrations Rights Agreement, none of the Issuers will not, and will not permit any of the Subsidiaries or their respective Affiliates or persons acting on their behalf to, 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.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the Issuers will 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties will Issuers shall use all commercially reasonable their best efforts (i) to permit the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) to permit the Notes 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 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) None Prior to the consummation of the Great Wolf Group Members 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 their its Affiliates will engage is required to deliver a Memorandum in any directed selling efforts (as that term is defined in Regulation S) connection with sales of, or market making activities with respect to 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) For a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under the Act) following the date Not to voluntarily claim, and to actively resist 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 attempts to a registration statement which is effective under the Act, or (ii) in the written opinion of reputable counselclaim, the buyer benefit of such Securities is not acquiring “restricted securities” under Rule 144any usury laws against the holders of any Notes.
(o) Each Great Wolf Party shall use commercially reasonable efforts Not to cause the Securities to be secured by first priority liens on the Collateral distribute prior to the extent Closing Date any offering material in connection with the offering and in sale of the manner provided for in Notes other than the Indenture and the Security Documents and as described in the Pricing Disclosure PackageMemorandum.
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties covenant Each Issuer and agree Guarantor covenants and agrees with each Initial Purchaser you as follows:
(a) Until Each Issuer and Guarantor will cooperate with the last Initial Purchasers in endeavoring to occur qualify the Securities for sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that no Issuer or Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified 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.
(ib) At any time prior to the completion of the distribution of the Securities by the Initial Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing DatePurchasers to purchasers who are not affiliates thereof, the Great Wolf Parties Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 give the Initial Purchasers shall previously have been advised and furnished a copy for 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 period amount of time prior to the such proposed amendmentfiling or use, and will not use any such amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments Purchasers shall reasonably object within five days of being furnished a copy thereof.
(c) The Issuers have furnished or supplements will furnish to the Pricing Disclosure Package and Initial Purchasers such number of copies of the Final Offering Memorandum that (as amended or supplemented) as the Initial Purchasers may be necessary or advisable in connection with reasonably request.
(d) At any time prior to the resale completion of the distribution of the Securities by the Initial Purchasers.
(b) The 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 therewithpurchasers who are not affiliates thereof, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process will advise you promptly and, if requested by you, confirm such advice in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) Ifwriting, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers happening 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 that makes any untrue statement of a material fact, fact made in the Offering Memorandum (as amended or omit supplemented from time to state a material fact necessary 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 the light of the circumstances under which they were made, not misleading. If, or if for during the period specified in the first sentence of this paragraph, any other reason event shall occur as a result of which it is necessary at any time necessary, in the reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Pricing Disclosure Package and Offering Memorandum in order to make the Final Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to comply with applicable lawa purchaser, the Great Wolf Parties Issuers will promptly notify forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers thereof and will preparePurchasers) so that, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact or omit to state any 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, 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 Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 a reasonable number of copies of all reports and other communications such amendment or supplement.
(financial or otherwisee) furnished by At any Great Wolf Party time prior to completion of 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 any Great Wolf Party with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(f) None of Sun International, SINA, the Guarantors or their subsidiaries will solicit any national securities exchange on which any class of securities offer to buy or offer or sell the Securities by means of any Great Wolf Party may be listed; provided that the foregoing obligation shall not apply to any reports form of general solicitation or other communication (including financial statements) that are made available on the Commission’s XXXXX database)general advertising.
(g) None of Sun International, SINA, the Great Wolf Group Members Guarantors or their subsidiaries or any affiliate of their Affiliates any of 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 Securities in a manner which that would require the registration of the Securities under the Act of the SecuritiesAct.
(h) The Parent During the period from the Closing Date to three years after the Closing Date, none of Sun International, SINA, the Guarantors and the Issuers or their subsidiaries 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 "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 Securities that have been reacquired by them, except for 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.
(i) For Sun International and SINA will, so long as any of the Securities remain are outstanding and are "restricted securities" within the Issuers are required pursuant to the provisions meaning 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 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)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Issuers are then Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is 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.
(j) The Great Wolf Parties will Issuers will, if requested by the Initial Purchasers, use all commercially reasonable their best efforts in cooperation with the Initial Purchasers to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) During Each of the period beginning on Securities will bear the date hereof and continuing legend contained in "Notice 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 Investors" 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 Offering Memorandum and upon the Issuers or any Affiliate of the Issuers)other terms stated therein, except as provided hereunder, any securities of any Great Wolf Group Member (after such Securities are resold or guaranteed by any Great Wolf Group Member) that are substantially similar exchanged pursuant to a registration statement effective under the SecuritiesAct.
(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 Securities offered and sold in an off shore transaction (as defined in Regulation S) any securities exchange pursuant to the Issuers will not register any transfer requirements of such Securities not made in accordance exchange or with the provisions of Regulation S and will not, except in accordance with Commission pursuant to the provisions of Regulation S, if applicable, issue any such Securities in Act or the form of definitive securitiesExchange Act.
(m) None The Issuers shall apply the net proceeds of their sale of the Great Wolf Group Members or any of their Affiliates will engage Securities as set forth in any directed selling efforts (as that term is defined in Regulation S) with respect to the SecuritiesOffering Memorandum.
(n) For a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under The Issuers shall not invest, or otherwise use the Act) following the date any Securities are acquired proceeds received by the Issuers from their sale of the Securities in such a manner as would require Sun International 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 its subsidiaries to a registration statement which is effective register as an investment company under the Act, 1940 Act or (ii) in the written opinion of reputable counsel, the buyer of such Securities is not acquiring “restricted securities” under Rule 144rules and regulations thereunder.
(o) Each Great Wolf Party shall use commercially reasonable efforts to cause For a period of 90 days after 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 date of this Agreement, except as described in or contemplated by the Pricing Disclosure PackageOffering Memorandum, the Issuers will not, 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 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 any usury laws against any holders of Securities or Guarantees, 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 Issuer prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Samples: Purchase Agreement (Sun International North America Inc)
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) Until The Issuers will prepare the last 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 occur 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 to which the Representative may reasonably object.
(ib) The Issuers will furnish to the Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale and during the period referred to in paragraph (c) below, without charge, as many copies of the Preliminary Memorandum and the Offering Memorandum and any amendments and supplements thereto as they reasonably may request.
(c) Before making, 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 distribution of the Securities Notes 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, if any event occurs or information becomes known condition exists as a result of which the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum Offering Memorandum, as then amended or supplemented would include any untrue statement of a material factsupplemented, 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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, not misleading, or if it should be misleading necessary to amend or so that any Issuer Written Communication supplement the Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Issuers will not conflict with promptly (i) notify the Pricing Disclosure Package Initial Purchasers of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and provide to the Initial Purchasers, at their own expense, an amendment or supplement to the Preliminary Memorandum or the Offering Memorandum, so that the Pricing Disclosure Package statements in the Preliminary Memorandum or any Issuer Written Communication the Offering Memorandum as so amended or 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 Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and 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, 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 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 any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Issuers will likewise notify the 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 Great Wolf Party to nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Trustee Securities Act) or to the holders (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 Securities andNotes, as soon as availablethe Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports or and financial statements furnished to or filed by any Great Wolf Party with the Commission or any national securities exchange on which any class required to be delivered to the Trustee or holders of securities of any Great Wolf Party may be listedthe Notes pursuant to the Indenture or otherwise; provided provided, however, that the foregoing obligation shall not apply to any if such reports or other communication (including financial statements) that statements are made publically available on the Commission’s XXXXX database), delivery to the Initial Purchasers shall not be required.
(g) None 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 Great Wolf Group Members Notes that constitute “restricted securities” under Rule 144 that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers 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, 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 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 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 which would require the registration under the Securities Act of the SecuritiesNotes.
(hl) 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.
(i) For so So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities remain outstanding and Act, at any time that 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 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 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.)
(m) The Issuers will 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.
(jn) The Great Wolf Parties Until completion of the distribution, neither the Issuers nor any of their Affiliates will use all commercially reasonable efforts take, directly or indirectly, any action designed to permit cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the Securities price of any security of the Issuers to be eligible for clearance and settlement through The Depository Trust Companyfacilitate the sale or resale of the Notes.
(ko) During the period beginning on the date hereof and continuing Each Note will bear a legend substantially to the date that is 90 days after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes 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, without 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) PURSUANT TO CLAUSE (D) 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) IN 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.
(p) The Issuers and each of the prior written consent of Deutsche Bank Securities Inc.Guarantors will not, no Great Wolf Group Member will directly or indirectly 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 debt securities of an 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 warrants to purchase debt securities of any Great Wolf Group Member (issued 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 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 Affiliatesthe 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, none without the prior written consent of the Issuers or any of their Affiliates will sell any such Xxxxx Fargo 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 144LLC.
(oq) Each Great Wolf Party shall use commercially reasonable efforts The Issuers will, promptly after they have notified the Representative of any intention by the Issuers to cause treat the Securities to be secured by first priority liens on Transactions as being a “reportable transaction” (within the Collateral meaning of Treasury Regulation Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or any successor form to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure PackageRepresentative.
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) Until The Issuers will prepare the last 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 occur 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 to which the Representative may reasonably object.
(ib) The Issuers will furnish to the Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale and during the period referred to in paragraph (c) below, without charge, as many copies of the Preliminary Memorandum and the Offering Memorandum and any amendments and supplements thereto as they reasonably may request.
(c) Before making, 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 distribution of the Securities Notes 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, if any event occurs or information becomes known condition exists as a result of which the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum Offering Memorandum, as then amended or supplemented would include any untrue statement of a material factsupplemented, 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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, not misleading, or if it should be misleading necessary to amend or so that any Issuer Written Communication supplement the Preliminary Memorandum or the Offering Memorandum, to comply with applicable law, the Issuers will not conflict with promptly (i) notify the Pricing Disclosure Package Initial Purchasers of the same; (ii) subject to the requirements of paragraph (a) of this Section 4, prepare and provide to the Initial Purchasers, at their own expense, an amendment or supplement to the Preliminary Memorandum or the Offering Memorandum, so that the Pricing Disclosure Package statements in the Preliminary Memorandum or any Issuer Written Communication the Offering Memorandum as so amended or 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 Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and 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, 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 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 any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Issuers will likewise notify the 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 Great Wolf Party to nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Trustee Securities Act) or to the holders (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 Securities andNotes, as soon as availablethe Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports or and financial statements furnished to or filed by any Great Wolf Party with the Commission or any national securities exchange on which any class required to be delivered to the Trustee or holders of securities of any Great Wolf Party may be listedthe Notes pursuant to the Indenture or otherwise; provided provided, however, that the foregoing obligation shall not apply to any if such reports or other communication (including financial statements) that statements are made publically available on the Commission’s XXXXX database), delivery to the Initial Purchasers shall not be required.
(g) None 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 Great Wolf Group Members Notes that constitute “restricted securities” under Rule 144 that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers 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, 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 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 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 which would require the registration under the Securities Act of the SecuritiesNotes.
(hl) 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.
(i) For so So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities remain outstanding and Act, at any time that 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 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 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.)
(m) The Issuers will 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.
(jn) The Great Wolf Parties Until completion of the distribution, neither the Issuers nor any of their Affiliates will use all commercially reasonable efforts take, directly or indirectly, any action designed to permit cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the Securities price of any security of the Issuers to be eligible for clearance and settlement through The Depository Trust Companyfacilitate the sale or resale of the Notes.
(ko) During the period beginning on the date hereof and continuing Each Note will bear a legend substantially to the date that is 90 days after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes 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, without 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) PURSUANT TO CLAUSE (D) 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) IN 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.
(p) The Issuers and each of the prior written consent of Deutsche Bank Securities Inc.Guarantors will not, no Great Wolf Group Member will directly or indirectly 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 debt securities of an 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 warrants to purchase debt securities of any Great Wolf Group Member (issued 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 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 Affiliatesthe 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, none without the prior written consent of the Issuers or any of their Affiliates will sell any such Xxxxx Fargo 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 144LLC.
(oq) Each Great Wolf Party shall use commercially reasonable efforts The Issuers will, promptly after they have notified the Representative of any intention by the Issuers to cause treat the Securities to be secured by first priority liens on Transactions as being a “reportable transaction” (within the Collateral meaning of Treasury Regulation Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or any successor form to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure PackageRepresentative.
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties covenant Each of the Issuers, jointly and agree severally, covenants and agrees with each the Initial Purchaser as followsPurchasers that:
(a) Until the last to occur of (i) the completion None 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 Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven its consent, which will not be unreasonably withheld. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities Notes by the Initial Purchasers.
(b) The Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateSecurities, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably requestcompliance.
(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 Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Securities remain outstandingoutstanding (but in no event longer than five years), 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 any Great Wolf Party 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 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 Memorandum.
(h) None of the Great Wolf Group Members or 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) 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 Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties Issuers will use all commercially their reasonable best efforts to (i) assist the Initial Purchasers in permitting the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the 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.
(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 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. The Great Wolf Parties covenant Each Issuer [and agree Guarantor] covenants and agrees with each Initial Purchaser the Underwriters as follows:
(a) Until Each Issuer [and Guarantor] will cooperate with the last Underwriters in endeavoring to occur qualify the Securities for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that no Issuer [or Guarantor] shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified 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.
(ib) 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) The Issuers have furnished or will furnish to the Representatives such number of copies of the Prospectus as the Representatives may reasonably request, 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 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 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 Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing Date, the Great Wolf Parties will not amend Act or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable delivered in connection with the resale of the Securities by the Initial Purchasers.
(b) The 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 sales of the Securities; provided, however, that in connection therewith, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any it is necessary, in the reasonable opinion of counsel for the Pricing Disclosure Package as then amended 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 or omit to state any 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 misleading or any Issuer Written Communication would conflict with existing at the Pricing Disclosure Package as then amended or supplementedtime it is delivered to a purchaser, or (ii) if 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 any the Prospectus in order to comply with the requirements of the Pricing Disclosure Package so that any of Act or the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable lawAct Regulations, the Great Wolf Parties Issuers will promptly notify prepare and file with the Initial Purchasers thereof and forthwith prepare andCommission, subject to paragraph (a) aboveSection 4(b), furnish to the Initial Purchasers such amendments amendment 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) supplement as may be necessary so that to correct such statement or omission or to make the statements in any of Registration Statement or 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 Prospectus comply with applicable law.
(d) The Great Wolf Parties willsuch requirements, and the Issuers will 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 Pricing Disclosure Package, any Issuer Written Communication 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 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the 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 which would require the registration under the Act of the Securities.
(h) 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.
(i) For so long as any of the Securities remain outstanding 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 Prospectus is required to be delivered under the Act or the Exchange Act, the Company and each of its subsidiaries will, as required, file promptly all documents required to be filed with the Commission pursuant to Rule 144A(d)(4)Section 13, the Issuers will make available at its expense14, 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(jf) The Great Wolf Parties will Issuers will, if requested by the Underwriters, use all commercially reasonable their best efforts in cooperation with the Underwriters to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(kg) During The Company will, for the shorter of the period beginning on the date hereof Securities remain outstanding and continuing to the date that is 90 days after 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 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 regulations thereunder.
(j) Except as described in or contemplated by the Prospectus, the Issuers will not, without the prior written consent of Deutsche Bank Securities Inc.the Representatives (which consent will not be unreasonably or untimely withheld), no Great Wolf Group Member will directly or indirectly offerissue, sell, contract offer or agree to sell sell, or otherwise dispose of, directly or indirectly, any debt securities 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 their subsidiaries (other than the Issuers), except as provided hereunder, any securities 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 Great Wolf Group Member (usury laws against any holders of Securities [or guaranteed by any Great Wolf Group Member) that are substantially similar to the SecuritiesGuarantees, respectively].
(l) 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 timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of such Securities not made in accordance with Section 11(a) of 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 securitiesAct.
(m) None 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 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
Samples: Underwriting Agreement (Sun International Hotels LTD)
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) Until The Issuers will prepare the last 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 occur the Representative a copy of such proposed amendment or supplement and will not use any amendment or supplement to which the Representative may object.
(ib) The Issuers will furnish to the Initial Purchasers and to Counsel for the Initial Purchasers concurrently with the Time of Sale and during the period referred to in paragraph (c) below, without charge, as many copies of the Preliminary Memorandum and the Offering Memorandum and any amendments and supplements thereto as they reasonably may request.
(c) Before making, 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 distribution of the Securities Notes 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 written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The 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 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 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, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing Date, if any event occurs or information becomes known condition exists as a result of which the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum 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 Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum Offering Memorandum, to comply with applicable law, the Great Wolf Parties 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 Great Wolf Partiestheir own expense, an amendment or supplement to the Pricing Disclosure Package and Preliminary Memorandum or the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 thereinOffering Memorandum, 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 Preliminary Memorandum or the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances under which they were madewhen the Preliminary Memorandum or the Offering Memorandum is delivered to a purchaser, be misleading or so that any Issuer Written Communication will not conflict with the Pricing Disclosure Package Preliminary Memorandum or so that the Pricing Disclosure Package or any Issuer Written Communication Offering Memorandum, as so amended or supplemented supplemented, will comply with applicable law.
; and (diii) The Great Wolf Parties 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 Pricing Disclosure Package, any Issuer Written Communication 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 Pricing Disclosure Package and 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, 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 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 any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Issuers will likewise notify the 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 Great Wolf Party to nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Trustee Securities Act) or to the holders (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 Securities andNotes, as soon as availablethe Issuers become aware of any such decrease, notice or public announcement. The Issuers will also, for a period of three years from the Closing Date, deliver to the Initial Purchasers, as soon as available and without request, copies of any reports or and financial statements furnished to or filed by any Great Wolf Party with the Commission or any national securities exchange on which any class required to be delivered to the Trustee or holders of securities of any Great Wolf Party may be listedthe Notes pursuant to the Indenture or otherwise; provided provided, however, that the foregoing obligation shall not apply to any if such reports or other communication (including financial statements) that statements are made publically available on the Commission’s XXXXX database), delivery to the Initial Purchasers shall not be required.
(g) None 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 Great Wolf Group Members Notes that constitute “restricted securities” under Rule 144 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.
(h) Except as contemplated in the Registration Rights Agreement, none of the Issuers 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, 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 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 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 which would require the registration under the Securities Act of the SecuritiesNotes.
(hl) 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.
(i) For so So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities remain outstanding and Act, at any time that 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 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 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.)
(m) The Issuers will 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.
(jn) The Great Wolf Parties Until completion of the distribution, neither the Issuers nor any of their Affiliates will use all commercially reasonable efforts take, directly or indirectly, any action designed to permit cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the Securities price of any security of the Issuers to be eligible for clearance and settlement through The Depository Trust Companyfacilitate the sale or resale of the Notes.
(ko) During the period beginning on the date hereof and continuing Each Note will bear a legend substantially to the date that is 90 days after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes 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, without the prior written consent of Deutsche Bank Securities Inc.AS AMENDED (THE “SECURITIES ACT”), no Great Wolf Group Member 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) PURSUANT TO CLAUSE (D) 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) IN 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.
(p) The Issuers will not, directly or indirectly 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 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 Section 1.6011-4), deliver a duly completed copy of IRS Form 8886 or enter into any transaction which is designed successor form to the Representative.
(r) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an 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 might reasonably be expected toan agent of, 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 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 Issuers)transactions contemplated hereby, except as provided hereunder, any securities of any Great Wolf Group Member (and the Initial Purchasers shall have no responsibility or guaranteed by any Great Wolf Group Member) that are substantially similar liability to the Securities.
(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.
(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 Guarantors with respect thereto. Any review by the Initial Purchasers 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 counselGuarantors, the buyer transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Securities is the Initial Purchasers and shall not acquiring “restricted securities” under Rule 144be on behalf of the Issuers or the Guarantors.
(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. The Great Wolf Parties covenant Each Issuer and agree Guarantor covenants and agrees ------------------------ with each Initial Purchaser you as follows:
(a) Until Each Issuer and Guarantor will cooperate with the last Initial Purchasers in endeavoring to occur qualify the Securities for sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that no Issuer or Guarantor shall be required -------- to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified 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.
(ib) At any time prior to the completion of the distribution of the Securities by the Initial Purchasers, (ii) the Closing Date and (iii) 180 days after the Closing DatePurchasers to purchasers who are not affiliates thereof, the Great Wolf Parties Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 give the Initial Purchasers shall previously have been advised and furnished a copy for 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 period amount of time prior to the such proposed amendmentfiling or use, and will not use any such amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments Purchasers shall reasonably object within five days of being furnished a copy thereof.
(c) The Issuers have furnished or supplements will furnish to the Pricing Disclosure Package and Initial Purchasers such number of copies of the Final Offering Memorandum that (as amended or supplemented) as the Initial Purchasers may be necessary or advisable in connection with reasonably request.
(d) At any time prior to the resale completion of the distribution of the Securities by the Initial Purchasers.
(b) The 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 therewithpurchasers who are not affiliates thereof, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process will advise you promptly and, if requested by you, confirm such advice in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) Ifwriting, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers happening 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 that makes any untrue statement of a material fact, fact made in the Offering Memorandum (as amended or omit supplemented from time to state a material fact necessary 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 the light of the circumstances under which they were made, not misleading. If, or if for during the period specified in the first sentence of this paragraph, any other reason event shall occur as a result of which it is necessary at any time necessary, in the reasonable opinion of counsel for the Initial Purchasers, to amend or supplement the Pricing Disclosure Package and Offering Memorandum in order to make the Final Offering Memorandum not misleading in the light of the circumstances existing at the time it is delivered to comply with applicable lawa purchaser, the Great Wolf Parties Issuers will promptly notify forthwith amend or supplement the Offering Memorandum (in form and substance reasonably satisfactory to counsel for the Initial Purchasers thereof and will preparePurchasers) so that, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then so amended or supplemented would supplemented, the Offering Memorandum will not include any an untrue statement of a material fact or omit to state any 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, 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 Great Wolf Parties will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the 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 a reasonable number of copies of all reports and other communications such amendment or supplement.
(financial or otherwisee) furnished by At any Great Wolf Party time prior to completion of 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 any Great Wolf Party with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(f) None of Sun International, SINA, the Guarantors or their subsidiaries will solicit any national securities exchange on which any class of securities offer to buy or offer or sell the Securities by means of any Great Wolf Party may be listed; provided that the foregoing obligation shall not apply to any reports form of general solicitation or other communication (including financial statements) that are made available on the Commission’s XXXXX database)general advertising.
(g) None of Sun International, SINA, the Great Wolf Group Members Guarantors or their subsidiaries or any affiliate of their Affiliates any of 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 Securities in a manner which that would require the registration of the Securities under the Act of the SecuritiesAct.
(h) The Parent During the period from the Closing Date to two years after the Closing Date, none of Sun International, SINA, the Guarantors and the Issuers or their subsidiaries 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 "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 Securities that have been reacquired by them, except for 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.
(i) For Sun International and SINA will, so long as any of the Securities remain are outstanding and are "restricted securities" within the Issuers are required pursuant to the provisions meaning 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 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)(4144(a)(3) under the Act, unless either (i) file reports and other information with the Issuers are then Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is 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.
(j) The Great Wolf Parties will Issuers will, if requested by the Initial Purchasers, use all commercially reasonable their best efforts in cooperation with the Initial Purchasers to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) During Each of the period beginning on Securities will bear the date hereof and continuing legend contained in "Notice 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 Investors" 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 Offering Memorandum and upon the Issuers or any Affiliate of the Issuers)other terms stated therein, except as provided hereunder, any securities of any Great Wolf Group Member (after such Securities are resold or guaranteed by any Great Wolf Group Member) that are substantially similar exchanged pursuant to a registration statement effective under the SecuritiesAct.
(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 Securities offered and sold in an off shore transaction (as defined in Regulation S) any securities exchange pursuant to the Issuers will not register any transfer requirements of such Securities not made in accordance exchange or with the provisions of Regulation S and will not, except in accordance with Commission pursuant to the provisions of Regulation S, if applicable, issue any such Securities in Act or the form of definitive securitiesExchange Act.
(m) None The Issuers shall apply the net proceeds of their sale of the Great Wolf Group Members or any of their Affiliates will engage Securities as set forth in any directed selling efforts (as that term is defined in Regulation S) with respect to the SecuritiesOffering Memorandum.
(n) For a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under The Issuers shall not invest, or otherwise use the Act) following the date any Securities are acquired proceeds received by the Issuers from their sale of the Securities in such a manner as would require Sun International 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 its subsidiaries to a registration statement which is effective register as an investment company under the Act, 1940 Act or (ii) in the written opinion of reputable counsel, the buyer of such Securities is not acquiring “restricted securities” under Rule 144rules and regulations thereunder.
(o) Each Great Wolf Party shall use commercially reasonable efforts to cause For a period of 90 days after 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 date of this Agreement, except as described in or contemplated by the Pricing Disclosure PackageOffering Memorandum, the Issuers will not, 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 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 any usury laws against any holders of Securities or Guarantees, 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 Issuer prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Covenants of the Issuers. The Great Wolf Parties Issuers covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven its consent. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by any Great Wolf Party the 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 any Great Wolf Party the Company with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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 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 Great Wolf Group Members Issuers 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 which would require the registration under the Act of the Securities.
(hg) 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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 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. The Great Wolf Parties covenant Each of the Issuers covenants and agree ------------------------ agrees with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected within two business days after being provided a copy of such amendment or supplement, unless in a timely mannerthe opinion of counsel to the Issuers such amendment or supplement is required by law. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the 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 Great Wolf Parties 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 not be required to ------- qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale distribution by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateSecurities, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication Preliminary Memorandum and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Prior to the Closing Date, the Issuers will apply furnish to the net proceeds from the sale Initial Purchasers, as soon as they have been prepared, a copy of any unaudited consolidated interim financial statements of the Securities as set forth under “Use of Proceeds” Company for any period subsequent to the period covered by the most recent financial statements appearing 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 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of 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) None of the Great Wolf Group Members 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 which would require the registration under the Act of the Securities.
(hg) 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 of the Securities within the meaning of Section 4(2) of the Act.
(ih) For so long as any of the Securities remain outstanding and are "restricted securities" within the Issuers are required pursuant to meaning of Rule 144(a)(3) under 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)Act, the Issuers 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ji) The Great Wolf Parties Issuers will use all commercially reasonable their respective best efforts to (i) permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the 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.
(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.
(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.
(mk) None The Company shall apply the net proceeds from the sale of the Great Wolf Group Members or any Notes, the sale of their Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect the Convertible Subordinated Notes and borrowings under the Credit Agreement to the Securities.
(n) For a period purchase 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 its Common Stock pursuant to a registration statement which the Tender Offer and take all other steps as are reasonably necessary to consummate the Tender Offer, in each case as soon as is effective under reasonably practicable after the Act, or (ii) in the written opinion of reputable counsel, the buyer of such Securities is not acquiring “restricted securities” under Rule 144Issue Date.
(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. The Great Wolf Parties Issuers, jointly and severally, covenant and agree with each of the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not unreasonably be withheld. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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, neither of the Issuers shall not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale initial resale by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DateNotes, 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 Great Wolf Parties Issuers will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesIssuers, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 any Great Wolf Party 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 Great Wolf Party the Issuers with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party the Company 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, 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 Great Wolf Group Members Issuers 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 which would require the registration under the Act of the Securities.
(hi) 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.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the Issuers 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers will use all commercially reasonable their best efforts to (i) permit the Securities to be designated for trading in the Private Offerings, Resales and Trading through Automated Linkages market (the "PORTAL Market") of the NASD 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 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) 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. The Great Wolf Parties covenant Each of the Issuers covenants and agree agrees with each the Initial Purchaser as followsPurchasers that:
(a) 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 The Issuers will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute any amendment or refer to any written communication (as defined under Rule 405 supplement thereto of the Act) that constitutes an offer to sell or a solicitation of 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 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, amendment or supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely mannergiven their consent, which consent shall not be unreasonably withheld. The Great Wolf Parties Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and 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 Great Wolf Parties 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 not be required to qualify as a foreign corporations (or otherwise) corporation or to execute a general consents consent to service of process in any jurisdiction or subject themselves itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1c) If, at any time prior to the latest of (i) the completion of the sale of Securities by the Initial Purchasers of the Securities or the Private Exchange Securities and (ii) 180 days after the Closing DatePurchasers, 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 Great Wolf Parties Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf PartiesCompany, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the 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 lawcompliance.
(d) The Great Wolf Parties Issuers will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication 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 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 any Great Wolf Party 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 any Great Wolf Party the Issuers with the Commission or any national or international securities exchange on which any class of securities of any Great Wolf Party the Issuers 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 Great Wolf Group Members or 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 which that would require the registration under the Act of the Securities.
(hi) The Parent Guarantors and None of 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.
(ij) For so long as any of the Securities remain outstanding 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)outstanding, the Issuers 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 Issuers are Company is then subject to Section 13 or 15(d) of the Exchange Act.
(jk) The Great Wolf Parties Issuers 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. The Great Wolf Parties Issuers covenant and agree with each Initial Purchaser as follows:
(aq) Until If and to the last 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 occur be registered under the Securities Act as in effect at the time of the Remarketing, the Issuers shall:
(i) prepare the completion of Registration Statement and the distribution of Prospectus, in a form approved by the Remarketing Agent, file any such Prospectus pursuant to the Securities Act within the period required by the Initial Purchasers, 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 Closing Date and 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 or the Remarketing Agent, be required by the Securities Act or requested by the Commission;
(iii) 180 days advise the Remarketing Agent, promptly after the Closing Dateit receives notice thereof, the Great Wolf Parties will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Acttime 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 to furnish the Remarketing Agent with copies thereof;
(iv) that constitutes an offer file promptly all reports and any definitive proxy or information statements required to sell or a solicitation of an offer to buy be filed by the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report Issuers with the Commission under pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior subsequent to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have reasonably objected in a timely manner. The Great Wolf Parties 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 Pricing Disclosure Package and 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 Great Wolf Parties will cooperate with the Initial Purchasers Preliminary Prospectus and any amended or supplemented Preliminary Prospectus; (c) the Prospectus and any amended or supplemented Prospectus; and (d) any document incorporated by reference 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 SecuritiesProspectus (excluding exhibits thereto); providedand, however, that in connection therewith, the Issuers shall not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in any such jurisdiction where it is not then so subject.
(1) If, if at any time prior when delivery of a prospectus (or in lieu thereof, the notice referred to the latest of (iin Rule 173(a) the completion of the sale by the Initial Purchasers of under the Securities or Act) is required in connection with the Private Exchange Securities and (ii) 180 days after the Closing DateRemarketing, any event occurs or information becomes known shall have occurred 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package Prospectus 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 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 any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplementedmisleading, or (ii) if for any other reason it is shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any of document incorporated by reference in the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will Prospectus in order to comply with applicable lawthe Securities Act or the Exchange Act, the Great Wolf Parties will promptly to notify the Initial Purchasers thereof and forthwith prepare Remarketing Agent and, subject upon its request, to paragraph (a) above, file such document and to prepare and furnish without charge to the Initial Purchasers such amendments or supplements Remarketing Agent and to any of dealer in securities as many copies as the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements Remarketing Agent may take the form from time to time reasonably request of an amended or supplemented Final MemorandumProspectus that will correct such statement or omission or 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 may be necessary so that the statements 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 Pricing Disclosure Package as so amended or supplemented will not, in light Issuers complying with (which need not be audited) Section 11(a) of the circumstances Securities Act and the rules and regulations thereunder (including, at the option of the Issuers, Rule 158 under which they were made, 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 misleading required to qualify as a foreign corporation or so that to file a general consent to service of process in 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 lawjurisdiction.
(dr) The Great Wolf Parties 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 Pricing Disclosure PackageRegistration Statement, if any, any Preliminary Prospectus, any Issuer Written Communication 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” in the Pricing Disclosure Package obligations of the Issuers hereunder and the Final MemorandumRemarketing Agent hereunder; and (vii) the reasonable fees and expenses of counsel to the Remarketing Agent in connection with its duties hereunder.
(fs) For so long as any of The Issuers shall furnish the Securities remain outstanding, but only so long Remarketing Agent with such information and documents as the Issuers are subject Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the covenant 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 Indenture Issuers’ officers, directors, employees and accountants to provide reports participate in all such discussions and to the Trustee or to the holders of the Securities, the Great Wolf Parties will furnish to the Initial Purchasers copies of supply all reports and other communications (financial or otherwise) furnished such information reasonably requested by 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 any Great Wolf Party such Person in connection with the Commission or any national securities exchange on which any class of securities of 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)such investigation.
(gt) None At the written request of the Great Wolf Group Members or any of their Affiliates will sellRemarketing Agent, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in between the Act) that could be integrated with applicable Commencement Date and the sale of the Securities in a manner which would require the registration under the Act of the Securities.
(h) The Parent Guarantors and applicable Remarketing Settlement Date, 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.
(i) For so long as any of the Securities remain outstanding 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 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 Issuers are then subject to Section 13 or 15(d) of the Exchange Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to 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.the Remarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), no Great Wolf Group Member will directly or indirectly offerindirectly, sell, offer, contract or grant any option to sell 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 enter into any transaction which is designed totransfer, or might reasonably 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 Remarketed Notes or securities exchangeable for or convertible into debt securities similar to the Remarketed Notes.
(u) Each of the 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 defined in Rule 405 of the Act, required to 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 filed with the Commission. Any such free writing prospectus consented to in writing by the Issuers or 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 Affiliate Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(v) The Issuers shall prepare a final term sheet relating to the Remarketed Notes, containing only information that describes the final terms of the 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), 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 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 file such final term sheet within the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(mperiod required by Rule 433(d) 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) Act following the date any Securities are acquired by such final terms have been established for the Issuers or any Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes 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 144this Agreement.
(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. The Great Wolf Parties covenant Each of the Issuers and agree the Guarantors covenants with each Initial Purchaser as follows:
(a) Until To furnish to you in New York City, without charge, as promptly as practicable following the last to occur Time of Sale and in any event not later than the second business day following the date hereof and during the period mentioned in Section 6(d) or (i) the completion e), as many copies of the distribution Time of the Securities by the Initial PurchasersSale Memorandum, (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 and any written communication (supplements and amendments thereto as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of 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 previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall not have you may reasonably objected in a timely manner. The 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 Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasersrequest.
(b) The Great Wolf Parties will cooperate with Before amending or supplementing 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 therewithPreliminary Memorandum, the Issuers shall Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not be required to qualify as foreign corporations (or otherwise) or to execute general consents to service of process in any jurisdiction or subject themselves to taxation in use any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the latest of (i) the completion of the sale by the Initial Purchasers 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 Great Wolf Parties will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Great Wolf Parties, an proposed amendment or supplement to which you reasonably object promptly after receipt of notice thereof.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Pricing Disclosure Package 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 that corrects such statement or omission or effects such compliance is not yet available to prospective purchasers 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 it is necessary to amend or supplement the Time 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 Sale Memorandum 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 if, in the Pricing Disclosure Package as then amended judgment of the Representative or supplementedcounsel for the Initial Purchasers, or (ii) it is necessary to amend or supplement any the Time of the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will Sale Memorandum to comply with applicable law, the Great Wolf Parties will promptly notify the Initial Purchasers thereof to prepare and forthwith prepare andfurnish, subject to paragraph (a) aboveat its own expense, furnish to the Initial Purchasers such and to any dealer upon request, either amendments or supplements to any the Time 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 Sale Memorandum so that the statements in any the Time of the Pricing Disclosure Package 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 any Issuer Written Communication will not conflict with the Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication Time of Sale Memorandum, as so amended or supplemented supplemented, will comply with applicable law.
(de) The Great Wolf Parties willIf, without charge, provide 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 and 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 as many copies of the Pricing Disclosure PackagePurchasers, any Issuer Written Communication and it is necessary to amend or supplement the Final Memorandum or any amendment or supplement thereto as to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers may reasonably requestPurchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final 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 Final Memorandum, as amended or supplemented, will comply with applicable law.
(ei) The Issuers will apply the net proceeds To use commercially reasonable efforts to qualify or register (or to obtain exemptions from the sale qualifying or registering) all or any 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 Pricing Disclosure Package and the Final Memorandum.
(f) For effect so long as any required for the distribution of the Securities remain outstandingand (ii) to advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, but only so long as sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, to use its best efforts to obtain the withdrawal thereof at the earliest possible moment; provided, however, that in connection therewith, none of the Issuers are subject or the Guarantor shall be required to the covenant qualify as a foreign limited partnership, limited liability company or corporation in the Indenture to provide reports to the Trustee any jurisdiction where it is not now so qualified or to the holders file a general consent to service of the Securities, the Great Wolf Parties will furnish process or subject itself to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by taxation in 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 any Great Wolf Party with the Commission or any national securities exchange on which any class of securities of any Great Wolf Party may be listed; provided that the foregoing obligation shall jurisdiction where it is not apply to any reports or other communication (including financial statements) that are made available on the Commission’s XXXXX database)now so subject.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of 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 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 provided in Section 6(f). hereof, 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 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 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 (viii) all other cost 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 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 them and any advertising expenses connected with any offers they may make.
(h) None of the Great Wolf Group Members Issuers 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 which would require the registration under the Act of the SecuritiesNotes.
(hi) The Parent Guarantors and the Issuers will not, and will not permit any of the Subsidiaries their subsidiaries or their respective Affiliates 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.
(ij) For so long as any During the period of two years after the Securities remain outstanding Closing Date, the Partnership and the Issuers are required pursuant to the provisions of the Indenture to furnish to any holder of the Securitiesits subsidiaries will not be, securities analysts nor will it become, an open-end investment company, unit investment trust or their prospective investors the information face-amount certificate company that is or is required to be delivered pursuant to Rule 144A(d)(4), the 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) registered under the Act, unless the Issuers are then subject to Section 13 or 15(d) 8 of the Exchange Investment Company Act.
(j) The Great Wolf Parties will use all commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) During None of the period beginning on the date hereof and continuing to the date that is 90 days after the Closing DateIssuers, 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 acting on its or their behalf (other than 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 MemberInitial Purchasers) that are substantially similar to the Securities.
(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.
(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 Securities sold pursuant to Regulation S, and the SecuritiesIssuers 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 permit any of their affiliates (as defined in Rule 144 under the Securities 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 Securities Act.
(m) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Time of Sale Memorandum and the Final Memorandum.
(n) For a During the period of one year (calculated in accordance with paragraphs (d) of Rule 144 under the Act) 90 days following the date any Securities are acquired by hereof, the Issuers or Partnership will not and will not permit any of their Affiliatesits subsidiaries to, none without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC (which consent may be withheld at the Issuers 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 their Affiliates will sell any such Securities, unless (i) such Securities are sold pursuant to a registration statement which is effective Rule 16a-1 under the Exchange Act, or (ii) in otherwise dispose of or transfer, or announce the written opinion of reputable counseloffering of, the buyer of such Securities is not acquiring “restricted securities” or file any registration statement under Rule 144.
(o) Each Great Wolf Party shall use commercially reasonable efforts to cause 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 be secured by first priority liens on register 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 PackageExchange Securities).
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