Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes. (b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall: (1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law); (3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; (4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and (5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall: (1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any; (2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and (3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. (c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 4 contracts
Samples: Registration Rights Agreement (Omega Healthcare Investors Inc), Registration Rights Agreement (Omega Healthcare Investors Inc), Registration Rights Agreement (Omega Healthcare Investors Inc)
Exchange Offer. (ai) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff policy of the SEC, the Issuers shall use commercially reasonable efforts Companies and the Guarantor shall, for the benefit of the Holders, at the expense of the Companies and the Guarantor, (A) prepare and, on or prior to 270 days after the Issue Date (or if such 270th day is not a Business Day, on or prior to the first Business Day thereafter), file with the SEC, no later than the Filing Date, a Registration Statement (the “SEC an Exchange Offer Registration Statement”) Statement on an appropriate registration form with respect under the Securities Act covering the offer by the Companies and the Guarantor to a registered offer (the “Holders who are not prohibited by any law or policy of the SEC from participating in the Exchange Offer”) Offer to exchange any and all of the Registrable Transfer Restricted Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (xB) use commercially their reasonable best efforts to cause the such Exchange Offer Registration Statement to be declared effective under the Securities Act by the SEC on or before prior to 325 days after the Effectiveness Date; Issue Date (yor if such 325th day is not a Business Day, on or prior to the first Business Day thereafter), (C) use their reasonable best efforts to keep such Registration Statement effective for a period of not less than 20 Business Days after the date notice of the Exchange Offer open for at least 30 days is mailed to the Holders (or longer if required by applicable law) after (such period referred to herein as the date that notice of “Exchange Period”) and (D) use their reasonable best efforts to commence the Exchange Offer and, on or prior to 360 days after the Issue Date (or if such 360th day is mailed to Holders; and (z) consummate the Exchange Offer not a Business Day, on or prior to the 360th day following the Issue Date. Each Holder (includingfirst Business Day thereafter), without limitation, each Participating Broker-Dealer) who participates issue Exchange Notes in exchange for all Notes properly tendered and not withdrawn prior thereto in the Exchange Offer. Upon the effectiveness of the Exchange Offer will be required Registration Statement, the Companies and the Guarantor shall commence the Exchange Offer, it being the objective of such Exchange Offer to represent enable each Holder eligible and electing to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any exchange Transfer Restricted Notes for Exchange Notes (assuming that such Holder (a) is not an affiliate of either of the Companies within the meaning of Rule 405 under the Securities Act, (b) is not a broker-dealer tendering Transfer Restricted Notes acquired in exchange directly from the Companies (or an affiliate of either of the Companies) for Registrable its own account, (c) acquired the Exchange Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder ’s business and (d) has an arrangement no arrangements or understanding understandings with any Person to participate in the “distribution” Exchange Offer for the purpose of distributing (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iiiNotes) neither the Holder nor, and to the actual knowledge of transfer such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of after their receipt without any limitations or restrictions on transfer under the Securities Act to and under state securities or blue sky laws.
(ii) In connection with the extent applicable Exchange Offer, the Companies and will provide information the Guarantor shall:
(A) mail or caused to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes mailed as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes promptly as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in practicable after the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect has been declared effective under the Securities Act to each Holder a copy of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in forming part of the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” Statement, together with, in the form attached hereto as Exhibit A or as otherwisecase of a Holder who holds Notes held in physical certificated form, reasonably acceptable an appropriate letter of transmittal and related documents and, in the case of a Holder who is the beneficial owner of such Notes held in book-entry form, instructions regarding the procedures for automated delivery of such Notes pursuant to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” Depositary’s Automated Tender Offer Program and related documents;
(as defined in Rule 13d-3 under the Exchange ActB) of Exchange Notes received by such broker-dealer in keep the Exchange Offer open for acceptance during the Exchange Period;
(a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by C) utilize the staff services of the SEC or such positions or policies represent Depositary for the prevailing views Exchange Offer;
(D) permit Holders to withdraw tendered Transfer Restricted Notes at any time prior to 5:00 p.m. (New York time) on the last Business Day of the staff Exchange Period by telegram, telex, facsimile transmission or letter to the institution specified in the notice, setting forth the name of such Holder, the principal amount of Notes delivered for exchange, and a statement that such Holder is withdrawing its election to have such Notes exchanged;
(E) notify each Holder that any Transfer Restricted Notes not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement (except in the case of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies Initial Purchasers and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell as provided herein); and
(F) otherwise comply in all material respects with all applicable laws relating to the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Offer.
(the “Applicable Period”). iii) If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Transfer Restricted Notes acquired by them that have and having the status of an unsold allotment in the initial distribution, the IssuersCompanies and the Guarantor upon the request of any Initial Purchaser shall, to the extent not prohibited by any applicable law or applicable policy of the SEC and to the extent the CUSIP Service Bureau will issue the same (other than any letter, number or such other notation, the purpose of which is to identify the Private Exchange Notes as securities subject to transfer restrictions not applicable to the Exchange Notes) CUSIP numbers for the Private Exchange Notes as for the Exchange Notes upon the request of the Initial PurchasersCompanies and the Guarantor described in (iv) below, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the such Initial Purchasers, Purchaser in exchange (the “Private Exchange”) for such the Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, Companies and guaranteed by the GuarantorsGuarantor, that are issued pursuant to, and entitled to the benefits of, the Indenture and identical in all material respects to the Exchange Notes Notes, except for that such securities and guarantee shall bear appropriate transfer restrictions (the placement of a restrictive legend on such “Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:”).
(1iv) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (iA) the Indenture or (iiB) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA United States Trust Indenture Act of 1939, as amended (the “TIA”) or is exempt from such qualification and shall provide that the Exchange Notes (other than the Private Exchange Notes) shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will shall have the right to vote or consent as a separate class on any matter. The Private Exchange Notes shall be of the same series as, and the Companies and the Guarantor shall request of the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Notes as for, the Exchange Notes issued pursuant to the Exchange Offer. The Companies and the Guarantor shall not have any liability hereunder solely as a result of such Private Exchange Notes not bearing the same CUSIP number as the Exchange Notes.
(cv) IfThe Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (iA) because that, in the opinion of any change in counsel to the Companies and the Guarantor, the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or in currently prevailing interpretations of the staff any applicable policy of the SEC, (B) that no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in GLP Capital’s reasonable judgment, might impair the Issuers are not permitted ability of the Companies and the Guarantor to effect the Exchange Offer, (ii) proceed with the Exchange Offer is not consummated within 360 days of or the Issue DatePrivate Exchange nor shall any material adverse development have occurred in any such action or proceeding with respect to the Companies and the Guarantor, (iiiC) any Holder so requests in writing to the Company at any time after that all governmental approvals shall have been obtained which approvals GLP Capital deems necessary for the consummation of the Exchange Offer with respect to Notes (including or Private Exchange Notesand (D) that were ineligible the due tendering of Transfer Restricted Notes in accordance with the terms of the Exchange Offer. As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as the case may be, the Companies and the Guarantor shall:
(1) accept for exchange all Transfer Restricted Notes properly tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be, in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal and related documents or automated delivery instructions and related documents, as the case may be, of which shall be exhibit thereto; and
(2) deliver, or cause to be exchanged delivered, to the Trustee for cancellation all Transfer Restricted Notes so accepted for exchange by the Companies and the Guarantor, and issue, and cause the Trustee under the Indenture to promptly authenticate and deliver to each Holder, a new Exchange Note or Private Exchange Note, as the case may be, equal in principal amount to the principal amount of the Notes surrendered by such Holder and accepted for exchange.
(vi) To the extent not prohibited by any law or applicable policy of the SEC, the Companies and the Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above, and shall comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. Each Holder of Notes who wishes to exchange such Notes for Exchange Notes in the Exchange Offer (or will be required to make certain customary representations in the case of Private Exchange Notesconnection therewith, were not issued in exchange for Notes including representations that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does is not receive Exchange Notes on the date an affiliate of either of the exchange that may be sold without restriction Companies within the meaning of Rule 405 under the Securities Act, or if it is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act (other than due solely to the status extent applicable, that it is not a broker-dealer tendering Transfer Restricted Notes acquired directly from either of such Holder as the Companies (or an affiliate of either of the Company Companies) for its own account, that any Exchange Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes. Each Participating Broker-Dealer will be required to further represent that any Transfer Restricted Notes to be exchanged for Exchange Notes were acquired by it as a result of market-making activities or other trading activities and so notifies acknowledge that it will deliver the Company within 30 days after such Holder first becomes aware of such restrictions, Prospectus included in the case Exchange Offer Registration Statement in connection with the resale of each Exchange Notes to the extent it is subject to the prospectus delivery requirements of clauses the SEC. The Companies and the Guarantor may inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Notes in the Exchange Offer.
(ivii) to and including (iv) Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this sentenceAgreement shall continue to apply, then the Issuers shall promptly deliver modified as necessary, solely with respect to the Holders Transfer Restricted Notes that are Private Exchange Notes, Exchange Notes held by Participating Broker-Dealers and the Trustee written notice thereof (the “Shelf Notice”) and shall file Transfer Restricted Notes entitled to a Shelf Registration pursuant to the first paragraph of Section 3 2(b) hereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (Gaming & Leisure Properties, Inc.), Registration Rights Agreement (Gaming & Leisure Properties, Inc.), Registration Rights Agreement (Gaming & Leisure Properties, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially their reasonable best efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially their respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 210th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 210 days of the Issue Date, (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (Omega Healthcare Investors Inc), Registration Rights Agreement (Omega Healthcare Investors Inc), Registration Rights Agreement (Omega Healthcare Investors Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers and the Guarantors shall use their respective commercially reasonable efforts to prepare and file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company same series of the Issuers (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers and the Guarantors shall (x) use their respective commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer and cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue DateDate (or if such 270th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company either Issuer or any Guarantor or, if it is an affiliate of the Companyeither Issuer or any Guarantor, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers and the Guarantors shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Each of the Issuers and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or after the date on which the Exchange Offer Registration Statement is declared effective, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the written request of the Initial PurchasersPurchasers or any such Holders, as the case may be, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders (or longer if required by applicable law)Holders;
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers and the Guarantors shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuers and the Guarantors; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and (iv) the Holders shall have satisfied customary conditions relating to the delivery of the Exchange Securities and the Private Exchange Notes (and related guarantees) and the execution and delivery of customary documentation relating to the Exchange Offer or Private Exchanges as applicable. The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers or the Guarantors are not permitted to effect consummate the Exchange OfferOffer within 270 days of the Issue Date, (ii) the Exchange Offer is not consummated within 360 270 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company either Issuer or any Guarantor within the meaning of the Securities Act) or (v) any Initial Purchaser so requests with respect to the Securities or the Private Exchange Notes (and related guarantees) that have the status of unsold allotments in an initial distribution and so notifies the Company Issuers within 30 days after such Holder Initial Purchaser or such Holder, as the case may be, first becomes aware of such restrictionsstatus (but in any event (x) no earlier than the date upon which the Exchange Offer Registration Statement is declared effective and (y) no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to through and including (ivv) of this sentence, then the Issuers and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (Summit Materials, LLC), Registration Rights Agreement (Summit Materials, LLC), Registration Rights Agreement (Summit Materials, LLC)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and to the extent a Shelf Notice is delivered pursuant to Section 2(c) hereof, will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the any prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Company deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 270 days of the Issue Date, (iii) any Holder Initial Purchaser or holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (Aramark), Registration Rights Agreement (Aramark), Registration Rights Agreement (Aramark)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers Company and the Guarantors shall use their respective commercially reasonable efforts to prepare and file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the applicable series of the Company (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable federal and state securities laws. The Issuers Company and the Guarantors shall (x) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (yx) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (zy) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Transfer Restricted Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities ActSecurities; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of either the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofor any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Transfer Restricted Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) ). In addition, all Holders of Transfer Restricted Securities shall otherwise cooperate in connection with any resale of the Company’s preparations for the Exchange NotesOffer. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Transfer Restricted Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Transfer Restricted Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which which, in the Company’s judgment, might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and and, in the Company’s judgment, no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the accuracy of customary representations of the Holders and other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations, the satisfaction by the Holders of customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Company or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of by the 270th day following the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 3 contracts
Samples: Registration Rights Agreement (APX Group Holdings, Inc.), Registration Rights Agreement (APX Group Holdings, Inc.), Registration Rights Agreement (APX Group Holdings, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts The Company agrees to file with the SEC, no later than Commission on or before the Filing Date, a Registration Statement Date an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of senior debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except Notes (the "Exchange Securities") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification of such trust indenture under the TIA) and which, in either case, conforms to the requirements necessary for qualification that has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall will be registered under the Securities Act on the appropriate form (the "Exchange Offer Registration Statement") and will comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall Company agrees to use its reasonable best efforts (xi) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under and to commence the Securities Act Exchange Offer on or before prior to the Effectiveness Date; , (yii) to keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after (the date that notice last day of such period, the Exchange Offer is mailed to Holders; "Expiration Date") and (ziii) consummate to exchange Exchange Securities for all Notes validly tendered and not withdrawn pursuant to the Exchange Offer on or prior to the 360th fifth day following the Issue Expiration Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required deemed to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesAct. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes as Securities to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and other than Exchange Notes Securities as to which clause 2(c)(ivSection 2(c)(v) hereof applies) pursuant to Section 3 hereofof this Agreement. No securities Securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Global Telesystems Group Inc), Registration Rights Agreement (Hermes Europe Railtel B V)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the The Issuers shall use commercially reasonable efforts agree to file with the SEC, no later than on or before the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of senior subordinated debt securities of the Company which are identical to the Notes and are guaranteed, jointly and severally, by each of the Guarantors with terms identical to the Guarantees (the “"Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that Securities") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which, in either case, conforms to the requirements necessary for qualification which has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall will be registered under the Securities Act on the appropriate form (the "Exchange Offer Registration Statement") and will comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its best efforts (xi) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under and to commence the Securities Act Exchange Offer on or before prior to the Effectiveness Date; , (yii) to keep the Exchange Offer open for at least 30 35 days (or longer if required by applicable law) after (the date that notice last day of such period, the Exchange Offer is mailed to Holders; "Expiration Date") and (ziii) consummate to exchange Exchange Securities for all Notes validly tendered and not withdrawn pursuant to the Exchange Offer on or prior to the 360th fifth day following the Issue Expiration Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required deemed to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes as Securities to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and other than Exchange Notes Securities as to which clause 2(c)(ivSection 2(c)(v) hereof applies) pursuant to Section 3 hereofof this Agreement. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC (and publicly disseminated) with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with Securities. Each of the Securities Act. The Issuers shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for at least 180 days following the first bona fide offering of securities under such period of Registration Statement (or such shorter time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Securities) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes Securities in the Exchange Offer, issue and deliver to the Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such Holderthe Initial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes Securities and are guaranteed, jointly and severally, by each of the Guarantors with terms identical to the Guarantees (the "Private Exchange Securities") (and which are issued pursuant to the same indenture as the Exchange Securities) (except for the placement of a restrictive legend on such Private Exchange NotesSecurities). The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauSecurities. In connection with Interest on the Exchange OfferSecurities and Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Issuers shall:
(1) mailNotes, or cause to be mailed, to each Holder of record entitled to participate in from the Issue Date. Any indenture under which the Exchange Offer a copy Securities or the Private Exchange Securities will be issued shall provide that the holders of the Prospectus forming part any of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer Securities and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall Securities will vote and consent together on all matters to which such holders are entitled to vote or consent as one class and that none of the holders of the Exchange Notes, Securities and the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Polymer Group Inc), Purchase Agreement (Polymer Group Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers The Company shall use commercially reasonable efforts to file with the SEC, SEC no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”"EXCHANGE OFFER") on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate Accreted Value or principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are substantially identical in all material respects to the NotesNotes (the "EXCHANGE NOTES"), except that (i) the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Datethereon, and which are entitled to the benefits of the Indenture Indenture, or a trust indenture which is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC or applicable law to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawslaw. The Issuers Company shall use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 45th day following the Issue Datedate on which the Exchange Registration Statement is declared effective by the SEC. The Exchange Offer shall be deemed to have been consummated upon the earlier to occur of (i) the Company having exchanged the Exchange Notes for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Notes for all Registrable Securities that have been tendered and not withdrawn before the expiration of the Exchange Offer, which shall be on a date that is at least 30 days following the commencement of the Exchange Offer. For purposes of this Section 2(a) only, if after such Exchange Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act Act, and to the extent make any additional representations which may then be required by applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Noteslaw. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; providedPROVIDED, howeverHOWEVER, that such period shall not be required to exceed 90 180 days after the Exchange Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”"APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other Holder is not entitled to participate in the IssuersExchange Offer, the Company upon the request of the Initial Purchasers, Purchaser or any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial PurchasersPurchaser and any such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by the Initial Purchaser and any such Holder, a like aggregate Accreted Value or principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are substantially identical in all material respects to the Exchange Notes except for (the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(43) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in aggregate Accreted Value or principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or the Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; , (ii) no action or proceeding shall have been is instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, Exchange and no material adverse development shall have has occurred in any existing action or proceeding with respect to the Issuers; Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, If (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 135 days of the Issue Filing Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case holder of Private Exchange NotesNotes so requests, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) state and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsfederal securities laws, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”"SHELF NOTICE") and shall file a Shelf Registration pursuant to Section 3 hereof.
(d) In the event that no Trigger Date occurs by virtue of the proviso to clause (iii) of the definition of Trigger Date, then the Company shall cause a registration statement pursuant to the Exchange Act in respect of the Notes to be filed with the SEC and to become effective, and so long as any of the Notes shall be outstanding shall thereafter file all reports required to be filed pursuant to Section 13 of the Exchange Act by an issuer subject to such Section 13 (whether or not the Company is then subject to the reporting requirements of Section 13 of the Exchange Act).
Appears in 2 contracts
Samples: Notes Registration Rights Agreement (Coinstar Inc), Notes Registration Rights Agreement (Coinstar Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts The Company agrees to file with the SEC, no later than Commission on or before the Filing Date, a Registration Statement Date an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of senior debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except Notes (the "Exchange Securities") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification of such trust indenture under the TIA) and which, in either case, conforms to the requirements necessary for qualification that has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall will be registered under the Securities Act on the appropriate form (the "Exchange Offer Registration Statement") and will comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall Company agrees to use its reasonable best efforts (xi) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under and to commence the Securities Act Exchange Offer on or before prior to the Effectiveness Date; , (yii) to keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after (the date that notice last day of such period, the Exchange Offer is mailed to Holders; "Expiration Date") and (ziii) consummate to exchange Exchange Securities for all Notes validly tendered and not withdrawn pursuant to the Exchange Offer on or prior to the 360th fifth day following the Issue Expiration Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required deemed to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesAct. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes as Securities to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and other than Exchange Notes Securities as to which clause 2(c)(ivSection 2(c)(v) hereof applies) pursuant to Section 3 hereofof this Agreement. No securities Securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section Section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC Commission (and publicly disseminated) with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus prospectus by all Persons persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActSecurities. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons persons subject to the prospectus delivery requirements of the Securities Act Act, whether as a result of market-making activities or other trading activities or otherwise, for at least 180 days following the first bona fide offering of securities under such period of Registration Statement (or such shorter time as is necessary to during which such persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Securities) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuers, Company upon the request of the Initial PurchasersPurchasers shall, shall simultaneously with the delivery of the Exchange Notes Securities in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “"Private Exchange”") for such the Notes held by any such Holderthe Initial Purchasers, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes Securities (the "Private Exchange Securities") (and which are issued pursuant to the same indenture as the Exchange Securities) (except for the placement of a restrictive legend on such Private Exchange NotesSecurities). The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauSecurities. In connection with Interest on the Exchange OfferSecurities and Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Issuers shall:
(1) mailNotes, or cause to be mailed, to each Holder of record entitled to participate in from the Issue Date. Any indenture under which the Exchange Offer a copy Securities or the Private Exchange Securities will be issued shall provide that the holders of the Prospectus forming part any of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer Securities and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall Securities will vote and consent together on all matters to which such holders are entitled to vote or consent as one class and that none of the holders of the Exchange Notes, Securities and the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hermes Europe Railtel B V), Registration Rights Agreement (Hermes Europe Railtel B V)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers and the Guarantors shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the applicable series of Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on an unsecured senior basis by Dell Technologies Inc., a Delaware corporation (“Holdings”), and on a secured senior basis by the Guarantorsother Guarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, applicable series of Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the later of
(x) the last date on which interest was paid on the such series of Notes or or, if no such interest has been paid, from the Issue DateDate or (y) if such Note is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such Exchange Offer and as to which interest will be paid, the date of such interest payment date, (iii) the Exchange Securities will not contain provisions for the Additional Interest contemplated in Section 5 below, and which are (iv) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers and the Guarantors shall (x) use commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed delivered to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following that is five years after the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the applicable Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the applicable Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company an Issuer or, if it is an affiliate of the Companyan Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the such Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Notes (and the related Guarantees) and Exchange Notes Securities as to which Section 2(c)(iv2(d)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(d)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers and the Guarantors shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such HolderInitial Purchasers, a like principal amount of the applicable series of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, if applicable, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauGlobal Services. In connection with the Exchange Offer, the Issuers shall:
(1) maildeliver, or cause to be maileddelivered, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after at least 20 Business Days from the date that notice of the Exchange Offer is mailed delivered to Holders of the applicable series of Notes (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York[Reserved];
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close expiration of the Exchange Offer and the any Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the applicable Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the applicable Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the applicable series of Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes of the applicable series in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers and the Guarantors to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuers or the Guarantors; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The ; and (iv) the accuracy of customary representations of the Holders and other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations, the satisfaction by the Holders of customary conditions relating to the delivery of Exchange Notes Securities and the Private Exchange Notes (and related guarantees) and the execution and delivery of customary documentation relating to the Exchange Offer.
(c) The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes of a series outstanding shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes outstanding of a series will have the right to vote or consent as a separate class on any matter.
(cd) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days five years of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly (but, for the avoidance of doubt, no earlier than the date that is five years after the Issue Date) deliver to the applicable Trustee (to deliver to the Holders and of the Trustee applicable series of Notes) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dell Technologies Inc.), Registration Rights Agreement (Dell Technologies Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers and the Guarantors shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, Senior Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the Senior Notes or if no such interest has been paid, from and (iii) the Issue Date, and which are Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers and the Guarantors shall (x) use commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 365th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company an Issuer or, if it is an affiliate of the Companyan Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(d)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers and the Guarantors shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Senior Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Senior Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after at least 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Senior Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the applicable Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the applicable Trustee to authenticate and deliver promptly to each Holder of Senior Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Senior Notes of such Holder so accepted for exchange; provided that, in the case of any Senior Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Senior Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. .
(c) The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Senior Notes outstanding shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Notes outstanding will have the right to vote or consent as a separate class on any matter.
(cd) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 365 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and applicable Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tesoro Corp /New/), Registration Rights Agreement (Tesoro Logistics Lp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, ) that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 210th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer Offer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in in, the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Notes, Exchange Notes as to which clause 2(c)(iv) hereof appliesapplies and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 180 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially its reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Company deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 210 days of the Issue Date, (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 60 days after such Holder first becomes aware the consummation of such restrictionsthe Exchange Offer, then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Istar Financial Inc), Registration Rights Agreement (Istar Financial Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), unconditionally guaranteed on a senior unsecured basis by the GuarantorsGuarantors in accordance with the terms of the Guarantees, that are identical in all material respects to the Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness Date; Exchange Offer, (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; Holders and (z) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes for its own account in exchange for Notes that were acquired as a result of market-making activities or other trading activities and that it activities, such Holder will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) hereof is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause Section 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes and the Notes (and, in each case, the related Guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers”, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (such exchange, the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, unconditionally guaranteed by the GuarantorsGuarantors on a senior unsecured basis in accordance with the terms of the Guarantees, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The the City of New York, which may be the Trustee or an affiliate thereof;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that that: (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange; and (iv) the Holders shall have satisfied customary conditions relating to the delivery of the Notes and/or Private Exchange Notes and the execution and delivery of customary documentation relating to the Exchange Offer or Private Exchange, as applicable, including in the case of the Exchange Offer the representations made in Section 2(a) hereof. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 270 days of the Issue Date, (iii) any Holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Ryman Hospitality Properties, Inc.), Registration Rights Agreement (Ryman Hospitality Properties, Inc.)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by applicable law or any applicable interpretation interpretations of the staff Staff of the SEC, the Issuers shall use commercially reasonable efforts Issuer and the Guarantors agree to file with the SEC, no later than SEC within 90 days after the Filing Date, Issue Date a Registration Statement (registration statement under the “Exchange Offer Registration Statement”) on an appropriate registration form Securities Act with respect to a registered an offer to exchange (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company Issuer and the Guarantors (the “"Exchange Notes”"), guaranteed on a senior basis by the Guarantors, that are which Exchange Notes will be (i) substantially identical in all material respects to the Notes, except that (i) the such Exchange Notes shall will not contain no restrictive legend thereon terms with respect to transfer restrictions and the identity of the Guarantors may change in accordance with the terms of the Indenture and, (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) ), and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA, and (iii) registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer shall will be registered pursuant to the Securities Act on an appropriate form of Registration Statement (the "Exchange Offer Registration Statement"), and will comply with all applicable tender offer rules and regulations under promulgated pursuant to the Exchange Act and other shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws. The Issuers Exchange Offer shall (x) not be subject to any condition, other than that the Exchange Offer does not violate any applicable law, policy or interpretation of the staff of the SEC. No securities shall be included in the Exchange Offer Registration Statement other than the Transfer Restricted Securities and the Exchange Notes. The Issuer and the Guarantors agree to use commercially their reasonable best efforts to cause the such Exchange Offer Registration Statement to be declared effective under the Securities Act on or before within 180 days after the Effectiveness Issue Date; (y) . Promptly after the Exchange Offer Registration Statement is declared effective, the Issuer and Guarantors will commence the offer of Exchange Notes in exchange for properly tendered Notes. The Issuer and Guarantors will keep the Exchange Offer open for at least 30 not less than 20 business days (or such longer if period required by applicable law) after the date that the notice of the Exchange Offer referred to below is mailed to Holders; and (z) consummate . For each Note validly tendered pursuant to the Exchange Offer on or prior Offer, the holder of such Note will receive the Exchange Notes having a principal amount at maturity equal to that of the 360th day following the Issue Datetendered Note. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation Notes, and that such Holder is not an "affiliate" of the provisions Issuer within the meaning of Rule 405 of the Securities Act; Act (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, or that if it is such an affiliate of the Companyaffiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable applicable). Each Holder that is not a Participating Broker-Dealer will be required to represent that it is not engaged in, and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends does not intend to engage in a in, the distribution of the Exchange Notes; and . Each Holder that (vi) if such Holder is a Participating Broker-Dealer, such Holder has Dealer and (ii) will receive Exchange Notes for its own account in exchange for the Transfer Restricted Securities that it acquired as the Registrable Notes as a result of market-making activities or other trading activities and will be required to acknowledge that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) deliver a Prospectus as required by law in connection with any resale of such Exchange Notes. The Issuer shall allow Participating Broker-Dealers and other persons, if any, subject to similar prospectus delivery requirements to use the Prospectus included in the Exchange Offer Registration Statement in connection with the resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, Issuer and the Company Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) Transfer Restricted Securities pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Issuer and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) ), of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Issuer and the Guarantors shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective under the Securities Act and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, PROVIDED that such period shall not be required to exceed 90 days after consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sun Healthcare Group Inc), Registration Rights Agreement (Sun Healthcare Group Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall The Issuer agrees to use commercially reasonable its best efforts to file (and to cause any then existing Subsidiary Guarantor to file) with the SEC, SEC no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than the Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”)Issuer, guaranteed on a senior basis by each such Subsidiary Guarantor and secured by the Guarantorssame collateral as the Notes, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act, shall not provide for Additional Interest and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall Issuer agrees to use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 calendar days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 45th day following the Issue Datedate on which the Exchange Registration Statement is declared effective. If after such Exchange Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an not entered into any arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; , (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of any of the Company, it will comply with Issuers within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; Act, (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is engaging in or intends not a broker-dealer, that it is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; Notes and (v) if such Holder is a Participating Broker-DealerDealer (as hereinafter defined), such Holder has that it will receive Exchange Notes for its own account in exchange for Notes that were acquired the Registrable Notes as a result of market-making activities or other trading activities activity, and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Issuer shall include within the Notes Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise", reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permitallow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Notes Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SECso permitted, all Participating Broker-Dealers, and include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Issuer shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Notes Prospectus contained therein therein, in order to permit such Notes Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “"Applicable Period”"). If, prior to upon consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having the status of an unsold allotment in the initial distribution, the Issuers, Issuer (upon the request of the such Initial PurchasersPurchaser) shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such Holderthe Initial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the CompanyIssuer, guaranteed by any then existing Subsidiary Guarantor and secured by the Guarantorssame collateral as the Exchange Notes, that are identical in all material respects to the Exchange Notes except for the placement existence of a restrictive legend restrictions on such transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "Private Exchange Notes. The Private Exchange Notes shall be ") (and which are issued pursuant to the same indenture as the Exchange Notes); provided, however, the Issuer shall not be required to effect such exchange if, in the written opinion of counsel for the Issuer (a copy of which shall be delivered to the Initial Purchaser and any Holder affected thereby), such exchange cannot be effected without registration under the Securities Act. The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes, if permissible. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if permitted by the CUSIP Service BureauNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Notes Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with Offer, which may be the Trustee or an address in the Borough of Manhattan, The City of New Yorkaffiliate thereof;
(43) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, business on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if anyas the case may be;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any only the following conditions, other than that : (i) the Exchange Offer or the Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; , (ii) no action or proceeding shall have been is instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; Exchange and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Issuer deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as Notes, if any, will be deemed one class and that none of security (subject to the provisions of the Exchange Notes, Indenture) and entitled to participate in all the Private Exchange Notes or security granted by the Notes will have Issuer pursuant to the right to vote or consent Security Documents and in any Subsidiary Guarantee (as a separate class such terms are defined in the Indenture) on any matteran equal and ratable basis.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Issuer (and any then existing Subsidiary Guarantor) are not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) Issuer or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 60 days after such Holder first becomes aware of such restrictionsrestrictions and providing a reasonable basis for its conclusions, in the case of each of clauses (i) to and including (iv) of this sentencei)-(iv), then the Issuers Issuer (and any then existing Subsidiary Guarantor) shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof3.
Appears in 2 contracts
Samples: Registration Rights Agreement (Forman Petroleum Corp), Indenture (Forman Petroleum Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the SEC, the Issuers shall use commercially reasonable efforts agrees to file with the SEC, Commission no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (including, without limitation, the guarantee provisions thereof) (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days not less than 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is first mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 45th day following the date on which the Exchange Registration Statement is declared effective (but in no event later than the 180th day after the Issue Date). If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (distribution of the Exchange Notes, that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act) , and any additional representations that in the written opinion of counsel to the Issuers are necessary under then-existing interpretations of the Commission in order for the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information Registration Statement to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesdeclared effective. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC Commission with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff Staff of the SEC Commission or such positions or policies policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff Staff of the SECCommission. Such “"Plan of Distribution” " section shall also expressly permitallow, to the extent permitted by applicable policies and regulations of the SECCommission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SECso permitted, all Participating Broker-Dealers, and include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary beginning when the Exchange Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Exchange Offer has been completed and such Persons are no longer required to comply with applicable law the prospectus delivery requirements in connection with any resale offers and sales of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “"Applicable Period”"). If, prior to upon consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such Holderthe Initial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes except for the placement existence of a restrictive legend restrictions on such transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "Private Exchange Notes. The Private Exchange Notes shall be ") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if permitted by no interest has been paid on the CUSIP Service BureauNotes, from the Issue Date. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration StatementStatement and, in the case of the Holders in Canada, any wrapper used in connection with the private placement of the Exchange Notes in Canada, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(43) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall Notes, if any, will vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Notes, if any, will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SECCommission, the Issuers are Company is not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange OfferOffer (and tenders its Registrable Notes prior to the expiration thereof), such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company any Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware following the consummation of such restrictionsthe Exchange Offer (and providing a reasonable basis for its conclusions), in the case of each of clauses (i) to and including (iv) of this sentencei)-(iv), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof3.
(d) [Any distribution in Canada of the Exchange Notes will be effected solely to holders of Registrable Notes who would be eligible to acquire Exchange Notes pursuant to prospectus exemptions under applicable Canadian securities legislation and, as a condition to the sale of their Registrable Notes pursuant to the Exchange Offer, holders of Registrable Notes in Canada will be required to make certain representations to the Issuers, including a representation that they are entitled under applicable Canadian securities legislation to acquire the Exchange Notes without the benefit of a prospectus qualified under such applicable securities laws.]
Appears in 2 contracts
Samples: Registration Rights Agreement (Affinity Group Holding, Inc.), Registration Rights Agreement (Affinity Group Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the The Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and no provision for payment of additional interest in the event of a registration default (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date“Exchange Notes”), and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. Interest on each Exchange Note will accrue (A) from the later of (1) the last interest payment date on which interest was paid on the Note surrendered, or (2) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, such interest payment date or (B) if no interest has been paid on that Note, from the Issue Date. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least acceptance for not less than 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior before November 22, 2006. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes (and related guarantees) thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to the 360th day following the Issue Datehave become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i1) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being (and related guarantees) to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii2) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes (and related guarantees) in violation of the provisions of the Securities Act; , (iii3) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405405 promulgated under the Securities Act) of any Issuer, (4) if the Company orholder is not a broker-dealer, if that it is an affiliate not engaged in, and does not intend to engage in, the distribution of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (and related guarantees) and (v5) if such Holder the holder is a broker-dealer (a “Participating Broker-Dealer, such Holder has ”) that it will receive the Exchange Notes (and related guarantees) for its own account in exchange for Securities that were acquired the Registrable Notes as a result of market-making activities or other trading activities activities, and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesNotes (and related guarantees). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and related guarantees), Exchange Notes (and related guarantees) as to which Section 2(c)(iv) is applicable and Exchange Notes (and related guarantees) held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and related guarantees) and other than in respect of any Exchange Notes (and related guarantees) as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes (and related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes Statement; provided, however that if the Company issues under the Indenture additional 5.95% Senior Notes due 2011 (and related guarantees issuable guarantees) that are identical in respect all material respects to the Notes and have the same CUSIP number as the Notes (“Additional Notes”), the Company may include in the Exchange Offer Registration Statement a like aggregate principal amount of notes of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Additional Notes, except that such notes shall contain no restrictive legend thereon, provided further, however, that the Exchange Notes (and related guarantees) as defined in that certain Registration Rights Agreement, dated as of April 26, 2006, by and among the Company, the guarantors named therein and the Initial Purchasers relating to the Company’s 6.50% Senior Notes due 2016 may be included in the Exchange Offer Registration Statement. The period of resale restrictions applicable to any Notes previously offered and sold in reliance on Rule 144A under the Securities Act shall automatically be extended to the last day of the period of any resale restrictions imposed on such Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerParticipating Broker-dealer Dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerParticipating Broker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”)Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities ActAct with respect to the Exchange Notes, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act with respect to the Exchange Notes for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; provided, however, that such period shall not be required to exceed 90 180 days after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes Holder holds any Registrable Securities acquired by them it that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or any Holder is not entitled to participate in the IssuersExchange Offer, the Issuers upon the request of the Initial Purchasers, any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”) for such Notes Registrable Securities held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers shall:
(1i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) use commercially reasonable their best efforts to keep the Exchange Offer open for acceptance for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4iv) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1vi) accept for exchange all Registrable Notes Securities that are validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2vii) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3viii) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities that are accepted for exchange, Exchange Notes or Private Exchange NotesNotes (and related guarantees), as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes (and related guarantees) and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes (and related guarantees) shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange NotesNotes (and related guarantees), the Private Exchange Notes (and related guarantees) and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesNotes (and related guarantees), the Private Exchange Notes (and related guarantees) or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of by the staff of the SECSEC staff, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Dateby November 22, 2006, (iii) any Holder in certain circumstances, certain holders of Private Exchange Notes (and related guarantees) so requests request in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesCompany, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates tenders Securities in response to the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of any of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions), then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall (a) promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and (b) at its sole expense and as promptly as practicable shall file a Shelf Registration Statement pursuant to Section 3 hereof. Notwithstanding anything in this Agreement to the contrary, if (i) a Filing Date or Effectiveness Date (or other date by which a filing is to be made or become effective) would fall on a day that is not a Business Day or (ii) the date by which the Exchange Offer is to be consummated would fall on a day that is not a Business Day, such Filing Date, Effectiveness Date (or other date by which a filing is to be made or become effective) or consummation date shall instead be the next succeeding Business Day.
Appears in 2 contracts
Samples: Registration Rights Agreement (Lennar Corp /New/), Registration Rights Agreement (Lennar Corp /New/)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the The Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and no provision for payment of additional interest in the event of a registration default (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date“Exchange Notes”), and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. Interest on each Exchange Note will accrue (A) from the later of (1) the last interest payment date on which interest was paid on the Note surrendered, or (2) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, such interest payment date or (B) if no interest has been paid on that Note, from the Issue Date. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least acceptance for not less than 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior before November 22, 2006. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes (and related guarantees) thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to the 360th day following the Issue Datehave become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i1) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being (and related guarantees) to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii2) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes (and related guarantees) in violation of the provisions of the Securities Act; , (iii3) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405405 promulgated under the Securities Act) of any Issuer, (4) if the Company orholder is not a broker-dealer, if that it is an affiliate not engaged in, and does not intend to engage in, the distribution of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (and related guarantees) and (v5) if such Holder the holder is a broker-dealer (a “Participating Broker-Dealer, such Holder has ”) that it will receive the Exchange Notes (and related guarantees) for its own account in exchange for Securities that were acquired the Registrable Notes as a result of market-making activities or other trading activities activities, and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesNotes (and related guarantees). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and related guarantees), Exchange Notes (and related guarantees) as to which Section 2(c)(iv) is applicable and Exchange Notes (and related guarantees) held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and related guarantees) and other than in respect of any Exchange Notes (and related guarantees) as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes (and related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes Statement; provided, however that if the Company issues under the Indenture additional 6.50% Senior Notes due 2016 (and related guarantees issuable guarantees) that are identical in respect all material respects to the Notes and have the same CUSIP number as the Notes (“Additional Notes”), the Company may include in the Exchange Offer Registration Statement a like aggregate principal amount of notes of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Additional Notes, except that such notes shall contain no restrictive legend thereon, provided further, however, that the Exchange Notes (and related guarantees) as defined in that certain Registration Rights Agreement, dated as of April 26, 2006, by and among the Company, the guarantors named therein and the Initial Purchasers relating to the Company’s 5.95% Senior Notes due 2011 may be included in the Exchange Offer Registration Statement. The period of resale restrictions applicable to any Notes previously offered and sold in reliance on Rule 144A under the Securities Act shall automatically be extended to the last day of the period of any resale restrictions imposed on such Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerParticipating Broker-dealer Dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerParticipating Broker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”)Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities ActAct with respect to the Exchange Notes, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act with respect to the Exchange Notes for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; provided, however, that such period shall not be required to exceed 90 180 days after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes Holder holds any Registrable Securities acquired by them it that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or any Holder is not entitled to participate in the IssuersExchange Offer, the Issuers upon the request of the Initial Purchasers, any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”) for such Notes Registrable Securities held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers shall:
(1i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) use commercially reasonable their best efforts to keep the Exchange Offer open for acceptance for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4iv) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1vi) accept for exchange all Registrable Notes Securities that are validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2vii) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3viii) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities that are accepted for exchange, Exchange Notes or Private Exchange NotesNotes (and related guarantees), as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes (and related guarantees) and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes (and related guarantees) shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange NotesNotes (and related guarantees), the Private Exchange Notes (and related guarantees) and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesNotes (and related guarantees), the Private Exchange Notes (and related guarantees) or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of by the staff of the SECSEC staff, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Dateby November 22, 2006, (iii) any Holder in certain circumstances, certain holders of Private Exchange Notes (and related guarantees) so requests request in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesCompany, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates tenders Securities in response to the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of any of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions), then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall (a) promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and (b) at its sole expense and as promptly as practicable shall file a Shelf Registration Statement pursuant to Section 3 hereof. Notwithstanding anything in this Agreement to the contrary, if (i) a Filing Date or Effectiveness Date (or other date by which a filing is to be made or become effective) would fall on a day that is not a Business Day or (ii) the date by which the Exchange Offer is to be consummated would fall on a day that is not a Business Day, such Filing Date, Effectiveness Date (or other date by which a filing is to be made or become effective) or consummation date shall instead be the next succeeding Business Day.
Appears in 2 contracts
Samples: Registration Rights Agreement (Lennar Corp /New/), Registration Rights Agreement (Lennar Corp /New/)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall Issuer and the Guarantors shall, at their sole expense, use their respective commercially reasonable efforts to prepare and file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company same series of the Issuer (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a senior unsecured basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Issuer and the Guarantors shall use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective. Upon an Exchange Offer Registration Statement being declared effective, the Issuer and the Guarantors shall commence the Exchange Offer. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable federal and state securities laws. The Issuers Issuer and the Guarantors shall (x) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (yx) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders; and (zy) consummate the Exchange Offer on or prior to the 360th 450th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Transfer Restricted Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder Holder, has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of either the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofIssuer or any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder Holder, is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Transfer Restricted Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) ). In addition, all Holders of Transfer Restricted Securities shall otherwise cooperate in connection with any resale of the Company’s and the Issuer’s preparations for the Exchange NotesOffer. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Transfer Restricted Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuer and the Guarantors shall have no further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Each of the Issuer and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or after the date on which the Exchange Offer Registration Statement is declared effective, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to the consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the written request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) of the Company, Issuer guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer and the Guarantors shall:
(1) mailsend, or cause to be mailedsent, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders (or longer if required by applicable law)Holders;
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer and the Guarantors shall:
(1) accept for exchange all Registrable Notes Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Transfer Restricted Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which which, in the Company’s judgment, might materially impair the ability of the Issuers Issuer and the Guarantors to proceed with the Exchange Offer or the Private Exchange, and and, in the Company’s judgment, no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer and the Guarantors; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange; and (iv) the accuracy of customary representations of the Holders and other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations, the satisfaction by the Holders of customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer or Private Exchanges, as applicable. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Issuer or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of by the 450th day following the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Issuer and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hilton Worldwide Holdings Inc.), Registration Rights Agreement (Hilton Worldwide Holdings Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the SEC, the Issuers shall use commercially reasonable efforts agrees to file with the SEC, SEC no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Subsidiary Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 calendar days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 45th day following the Issue Datedate on which the Exchange Registration Statement is declared effective. If after such Exchange Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of any of the Company, it will comply with Issuers within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesAct. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permitallow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SECso permitted, all Participating Broker-Dealers, and include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “"Applicable Period”"). If, prior to upon consummation of the Exchange Offer, the any Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having the status of an unsold allotment in the initial distribution, the Issuers, Company upon the request of the such Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the such Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Subsidiary Guarantors, that are identical in all material respects to the Exchange Notes except for the placement existence of a restrictive legend restrictions on such transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "Private Exchange Notes. The Private Exchange Notes shall be ") (and which are issued pursuant to the same indenture as the Exchange Notes); provided, however, the Issuers shall not be required to effect such exchange if, in the written opinion of counsel for the Issuers (a copy of which shall be delivered to the Initial Purchaser and any Holder affected thereby), such exchange cannot be effected without registration under the Securities Act. The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if permitted by the CUSIP Service BureauNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the date of the original issuance of the Notes. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(43) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if anyas the case may be;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any the following conditions, other than that : (i) the Exchange Offer or the Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; , (ii) no action or proceeding shall have been is instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, Exchange and no material adverse development shall have has occurred in any existing action or proceeding with respect to the Issuers; Issuers and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall Notes, if any, will vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Notes, if any, will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 150 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time Issuers within 120 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of any of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 60 days after such Holder first becomes aware of such restrictionsrestrictions and providing a reasonable basis for its conclusions, in the case of each of clauses (i) to and including (iv) of this sentencei)-(iv), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof3.
Appears in 2 contracts
Samples: Purchase Agreement (Packaged Ice Inc), Registration Rights Agreement (Packaged Ice Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers and the Guarantors shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the applicable series of Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, applicable series of Senior Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the Senior Notes or if no such interest has been paid, from and (iii) the Issue Date, and which are Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers and the Guarantors shall (x) use commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 575th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company an Issuer or, if it is an affiliate of the Companyan Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(d)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers and the Guarantors shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Senior Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Senior Notes held by any such Holder, a like principal amount of the applicable series of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after at least 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Senior Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the applicable Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the applicable Trustee to authenticate and deliver promptly to each Holder of Senior Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the applicable series of Senior Notes of such Holder so accepted for exchange; provided that, in the case of any Senior Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Senior Notes of the applicable series in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. .
(c) The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Senior Notes of the applicable series outstanding shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Notes outstanding of the applicable series will have the right to vote or consent as a separate class on any matter.
(cd) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 575 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and applicable Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tesoro Corp /New/), Registration Rights Agreement (Tesoro Logistics Lp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC or would not be permitted by the staff of the SEC, the Issuers Issuer shall use its commercially reasonable efforts to file cause to be filed with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are to the extent applicable, on an unsecured senior basis (such guarantees, the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), having terms substantially identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue (A) from the later of (x) the last date on which interest was paid on such Notes or (y) if the Notes are surrendered for Exchange Notes on a date in a period that includes the record date for an interest payment date for an interest payment to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall (x) use its commercially reasonable efforts to (w) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the any Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the such Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a Broker-Dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by the Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerBroker-dealer Dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerBroker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, ; including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period period, if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are to the extent applicable, on an unsecured senior basis, having terms substantially identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the related Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that on which notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as reasonably practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange NotesNotes (and related guarantees), as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. If the Issuer determines in its reasonable judgment that any of the foregoing conditions is not satisfied, the Issuer may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of Holders to withdraw those Registrable Securities, or (c) waive the unsatisfied conditions with respect to the Exchange Offer and accept all properly tendered Registrable Securities that have not been withdrawn. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture Indenture, with such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA, and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the relevant Indenture. The Indenture or such identical indenture shall provide that the Notes and the related Exchange Notes, the Notes and Private Exchange Notes and the Notes issued in exchange therefor shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the related Exchange Notes and Private Exchange Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day, (iii) any Holder of Private Exchange Notes so reasonably requests in writing to the Company Issuer at any time after the consummation of the Exchange Offer with respect to Notes Offer, (including Private Exchange Notesiv) that were ineligible to be exchanged for Exchange Notes because of any change in the Exchange Offer (law or in currently prevailing interpretation of the case staff of Private Exchange Notesthe SEC, were a Holder is not issued in exchange for Notes that are or were eligible permitted to be exchanged participate in the Exchange Offer) , or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (ivv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (for delivery to the Trustee Holders) written notice thereof (the “Shelf Notice”) and, in lieu of (or in the case of the preceding clauses (iii) and (v), in addition to) effecting registration of the Exchange Securities, shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (LVB Acquisition, Inc.), Registration Rights Agreement (LVB Acquisition, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate not be permitted by applicable law or any applicable interpretation of the staff of the SECCommission policy, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that will:
(i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in use all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause to be filed with the Exchange Offer Commission, after the Closing Date, a Registration Statement; and
(ii) use all commercially reasonable efforts to cause such Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 within 365 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Closing Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within Upon the Prospectus contained in effectiveness of the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwiseStatement, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in unless the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent would not be permitted by applicable policies and regulations of the SEClaw or Commission policy, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of promptly commence the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange .
(the “Private Exchange”c) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) use commercially reasonable efforts to keep the Exchange Offer open for not less than 20 Business Days and not more than 30 days Business Days after the date that notice of the Exchange Offer thereof is mailed to the Holders (or or, in each case, longer if required by applicable law);
(3iii) use their best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required, under the Act in order to ensure that it is available for sales of Exchange Notes by Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Exchange Offer with an address in the Borough of ManhattanManhattan in New York City, The City which may be the Trustee, the Exchange Notes Trustee or an Affiliate of New Yorkeither of them;
(4v) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains is open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Issuers are conducting the Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Issuers have not entered into any arrangement or understanding with any Person to distribute the Exchange Notes to be received in the Exchange Offer and that, to the best of the Issuers’ information and belief, each Holder participating in the Exchange Offer is acquiring the Exchange Notes in the ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes; and
(5vii) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(d) As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Issuers shall:
(1i) accept for exchange all Registrable Notes validly Securities tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyOffer;
(2ii) deliver to the Trustee for cancellation in accordance with Section 4(s) all Registrable Notes Securities so accepted for exchange; and
(3iii) cause the Exchange Notes Trustee promptly to authenticate and deliver promptly to each Holder of Notes, Securities a principal amount of Exchange Notes or Private Exchange Notes, as equal to the case may be, equal in principal amount to of the Notes Securities of such Holder so accepted for exchange; provided that, in the case of .
(e) Each Holder hereby acknowledges and agrees that any Notes held in global form by a depositary, authentication Broker-Dealer and delivery to any such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) Holder using the Exchange Offer or Private Exchangeto participate in a distribution of the Exchange Notes (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the case may beCommission’s letter to Shearman & Sterling dated July 2, does not violate applicable law or any applicable interpretation 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the staff Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the SEC; (ii) no action Act if the resales are of Exchange Notes obtained by such Holder in exchange for Securities acquired by such Holder directly from any Issuer or proceeding shall have been instituted or threatened one of its Affiliates. Accordingly, each Holder participating in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect be required to represent to the Issuers; and (iii) all governmental approvals shall have been obtainedIssuers that, which approvals at the Issuers deem necessary for time of the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under Offer:
(i) any Exchange Notes received by such Holder will be acquired in the Indenture or ordinary course of business;
(ii) an indenture identical such Holder will have no arrangement or understanding with any Person to participate in all material respects to the Indenture and which, in either case, conforms to distribution of the requirements necessary for qualification under the TIA Securities or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to within the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none meaning of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on Act; and
(iii) such Holder is not an Affiliate of any matterIssuer.
(cf) If, (i) because of If any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer Initial Purchaser determines that it is not consummated within 360 days of the Issue Date, (iii) any Holder so requests eligible to participate in writing to the Company at any time after the consummation of the Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Initial Purchaser, the Issuers shall issue and deliver to such Initial Purchaser or the Person purchasing Exchange Notes (including Private registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Notes) that were ineligible . The Issuers shall use their best efforts to be exchanged cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange Notes as for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible pursuant to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (NRG Yield LLC), Registration Rights Agreement (NRG Yield, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company and TC Funding (the “"Exchange Notes”Securities"), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes Securities shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or Securities or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 240th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “"affiliate” " (as defined in Rule 405) of the Company or TC Funding or, if it is an affiliate of the CompanyCompany or TC Funding, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “"beneficial owner” " (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes Securities acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial Purchasers, Purchasers shall simultaneously with the delivery of the Exchange Notes Securities issue and deliver to the Initial Purchasers, in exchange (the “"Private Exchange”") for such Notes Securities held by any such Holder, a like principal amount of notes securities (the “"Private Exchange Notes”Securities") of the Company, guaranteed by the Guarantors, Issuers that are identical in all material respects to the Exchange Notes Securities except for the placement of a restrictive legend on such Private Exchange NotesSecurities. The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes Securities and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauSecurities. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer Offer, a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes Securities or Private Exchange NotesSecurities, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes Securities held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange NotesSecurities, the Private Exchange Notes Securities and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesSecurities, the Private Exchange Notes Securities or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 240 days of the Issue Date, (iii) the Initial Purchasers or any Holder holder of Private Exchange Securities so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notestime, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Trump Indiana Inc), Registration Rights Agreement (Trump Indiana Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially their reasonable best efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a an unsecured senior subordinated basis by the Guarantors, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes Securities shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or Securities or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially their reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the the, Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Ex-change Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof or such time as such Participating Broker-Dealer no longer owns any Registrable Securities (the “Applicable Period”). IfIf any Initial Purchaser determines that it is not eligible to participate in the Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Initial Purchaser prior to consummation the commencement of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, Issuers shall simultaneously with the delivery of the Exchange Notes issue and deliver to such Initial Purchaser or the person purchasing Securities registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial PurchasersPurchaser, in exchange (the “Private Exchange”) for such Notes held by any such HolderSecurities, a like principal amount of notes Registrable Securities or Exchange Securities, as applicable. The Issuers shall use their commercially reasonable efforts to cause the CUSIP Service Bureau to issue the same CUSIP number and International Securities Identification Number (the “Private Exchange NotesISIN”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the for such Securities as for any Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be Securities issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauOffer. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or, in the case of the Sterling Notes, Amsterdam, London or Luxembourg, which may be the Trustee or an Affiliate of the Trustee;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyOffer;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Securities or Exchange Notes or Private Exchange NotesSecurities, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes Securities held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private ExchangeOffer, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private ExchangeOffer. The Exchange Notes and the Private Exchange Notes Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes Securities and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes Securities or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) the Initial Purchasers or any Holder other holder of Securities not able to participate in the Exchange Offer due to applicable law so requests in writing to the Company at any time after prior to the consummation commencement of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 15 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Warner Alliance Music Inc), Registration Rights Agreement (LEM America, Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities (other than the Private Exchange Securities, if any) for a like aggregate principal amount of debt securities of the Company Issuer (the “"Exchange Notes”), guaranteed on a senior basis by the Guarantors, Securities") that are substantially identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes Securities shall contain no restrictive legend thereon thereon, (ii) the Exchange Securities and the Private Exchange Securities shall not contain provisions for the Additional Interest contemplated in Section 4 hereof and (iiiii) interest thereon shall accrue from (A) the later of (x) the last interest payment date on which interest was paid on the Notes Securities surrendered in exchange therefor, or (y) if the Securities are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date, or (B) if no such interest has been paidpaid on such Securities, from the Issue Date, . The Exchange Securities and which are the Private Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA, or is exempt from such qualification. The Indenture or such trust indenture shall provide that (i) the Exchange Securities shall not be subject to the transfer restrictions set forth therein but that the Private Exchange Securities shall be subject thereto and (ii) the Exchange Securities, the Private Exchange Securities and the Securities shall vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities shall have the right to vote or consent as a separate class on any matter. The Exchange Offer shall comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 300th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has does not have an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is not an “"affiliate” " (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes its Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is not a broker-dealer, such Holder is not engaging in or intends and does not intend to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder); and (vi) in connection with any resale such Holder is not acting on behalf of a Person who could not make the Exchange Notesforegoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “"beneficial owner” " (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes Securities acquired by them it that have the status of an unsold allotment in the initial distribution, the Issuers, Issuer upon the request of the Initial Purchasers, Purchaser shall simultaneously with the delivery of the Exchange Notes Securities issue and deliver to the Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such Notes Securities held by any such Holder, a like principal amount of notes securities (the “"Private Exchange Notes”Securities") of the Company, guaranteed by the Guarantors, Issuer that are identical in all material respects to the Exchange Notes Securities, except for the placement of a restrictive legend on such Private Exchange NotesSecurities. The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes Securities and the Issuer shall use its best efforts to have the Private Exchange Securities bear the same CUSIP number as the Exchange Notes if permitted by Securities. The Issuer shall not have any liability under this Agreement solely as a result of the Private Exchange Securities not bearing the same CUSIP Service Bureaunumber as the Exchange Securities. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable their best efforts to keep the Exchange Offer open for not less than 30 calendar days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes Registrable Securities at any time prior to the close of business5:00 p.m., New York time, on the last Business Day on which the Exchange Offer remains openopen by sending to the institution specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that the Holder is withdrawing such Holder's election to have such Registrable Securities or portion thereof exchanged; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations relating to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyany in accordance with the terms of the Exchange Offer Registration Statement and the related letter of transmittal;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes Securities or Private Exchange NotesSecurities, as the case may be, equal in principal amount to the Notes Registrable Securities of such Holder so accepted for exchange; provided that, in the case of any Notes Registrable Securities held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may bebe or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) the valid tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange; (iii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which which, in the Issuer's reasonable judgment, might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iiiiv) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 300 days of the Issue Date, (iii) the Initial Purchaser or any Holder of Private Exchange Securities so requests in writing to the Company Issuer at any time within 90 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kronos International Inc), Registration Rights Agreement (Kronos International Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by applicable law laws, rules, regulations or any applicable interpretation interpretations of the staff of the SEC, the Issuers Company shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes for a like the same aggregate principal amount of debt securities notes (the "EXCHANGE NOTES") of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIAthereon. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 not less than 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 45th day following the Issue Datedate on which the Exchange Offer Registration Statement is declared effective by the SEC. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesAct. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further fur- ther obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereofthis Agreement. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersHolders, which shall contain a summary statement of such information as the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section Initial Purchasers shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Actreasonably request. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; providedPROVIDED, howeverHOWEVER, that such period shall not be required to exceed 90 180 days after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”"APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or any Holder is not entitled to participate in the IssuersExchange Offer, the Company upon the request of the Initial Purchasers, any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like the same principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes (except for the placement of that they may bear a restrictive customary legend with respect to restrictions on such Private Exchange Notestransfer). The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes Notes. The Company shall use its reasonable best efforts to cause the Private Exchange Notes, subsequent to the sale thereof pursuant to an effective Shelf Registration (as defined in Section 3(b) hereof) and removal of any legends restricting the transfer of such Private Exchange Notes, to bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from (A) the later of (i) the last in- terest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if permitted by the CUSIP Service BureauNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 20 business days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; , (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might would be reasonably likely to materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; Company and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of the Issue Date, (iii) the Initial Purchasers or any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”"SHELF NOTICE") and as promptly as possible shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Big Flower Holdings Inc/), Registration Rights Agreement (Big Flower Press Holdings Inc /Pred/)
Exchange Offer. (a) Unless The Company and the Guarantors shall (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the "Exchange Offer Registration Statement") on an appropriate form under the Securities Act with respect to a proposed offer (the "Exchange Offer") to the Holders to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Securities, (ii) use their best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their best efforts to issue, on or prior to 30 business days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Securities in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers .
(b) The Exchange Securities shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Datebe issued under, and which are entitled to the benefits of of, the Indenture or a trust indenture which that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the TIA) and which, in either case, conforms SEC to effect or maintain the requirements necessary for qualification thereof under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes).
(bc) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement and related documents;
(2ii) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer thereof is mailed to the Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4iv) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all laws applicable laws, rules and regulations. to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer Offer, the Company and the Private Exchange, if any, the Issuers Guarantors shall:
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyOffer;
(2ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3iii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in aggregate principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security and Private Exchange Security shall bear interest at the rate set forth thereon; provided thatprovided, in that interest with respect to the case of any period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes held in global form by a depositary, authentication and delivery from time to time during such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. period.
(f) The Exchange Offer Company and the Private Exchange Guarantors shall not be subject to any conditions, other than that (i) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of policies made by the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding SEC with respect to the Issuers; and potential "underwriter" status of any broker-dealer that is the beneficial owner (iiias defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all governmental approvals Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Company shall have been obtained, which approvals use its best efforts to keep the Issuers deem necessary Exchange Offer Registration Statement effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Securities; provided that such period shall not exceed 180 days after consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall (as such period may be issued under (i) the Indenture or (ii) an indenture identical in all material respects extended pursuant to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none last paragraph of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof Section 6 hereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof"Applicable Period")).
Appears in 2 contracts
Samples: Registration Rights Agreement (Atlantic Express Transportation Corp), Registration Rights Agreement (Atlantic Express Transportation Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use commercially its reasonable best efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “"Exchange Notes”"), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from (A) the later of (1) the last date on which interest was paid on the Notes or (2) if a Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date, or (B) if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 240th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “"affiliate” " (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “"beneficial owner” " (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “"Private Exchange”") for such Notes held by any such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially its reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 240 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Gci Inc), Registration Rights Agreement (General Communication Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers and the Guarantors shall use their respective commercially reasonable efforts to file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company applicable series of the Issuers (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers and the Guarantors shall (x) use their respective commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer and cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue DateDate (or if such 270th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company either Issuer or any Guarantor or, if it is an affiliate of the Companyeither Issuer or any Guarantor, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers and the Guarantors shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Each of the Issuers and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or after the date on which the Exchange Offer Registration Statement is declared effective, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the written request of the Initial PurchasersPurchasers or any such Holders, as the case may be, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders (or longer if required by applicable law)Holders;
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers and the Guarantors shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuers and the Guarantors; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and (iv) the Holders shall have satisfied customary conditions relating to the delivery of the Exchange Securities and the Private Exchange Notes (and related guarantees) and the execution and delivery of customary documentation relating to the Exchange Offer or Private Exchanges as applicable. The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers or the Guarantors are not permitted to effect consummate the Exchange OfferOffer within 270 days of the Issue Date, (ii) the Exchange Offer is not consummated within 360 270 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company either Issuer or any Guarantor within the meaning of the Securities Act) or (v) any Initial Purchaser so requests with respect to the Securities or the Private Exchange Notes (and related guarantees) that have the status of unsold allotments in an initial distribution and so notifies the Company Issuers within 30 days after such Holder Initial Purchaser or such Holder, as the case may be, first becomes aware of such restrictionsstatus (but in any event (x) no earlier than the date upon which the Exchange Offer Registration Statement is declared effective and (y) no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to through and including (ivv) of this sentence, then the Issuers and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Continental Cement Company, L.L.C.), Registration Rights Agreement (Continental Cement Company, L.L.C.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the SEC, the Issuers shall use commercially reasonable efforts agrees to file with the SEC, SEC no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Subsidiary Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 calendar days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 45th day following the Issue Datedate on which the Exchange Registration Statement is declared effective. Each Holder (includingIf after such Exchange Registration Statement is initially declared effective by the SEC, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to or the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) issuance of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder northereunder is interfered with by any stop order, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities injunction or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.order or
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permitallow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SECso permitted, all Participating Broker-Dealers, and include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “"Applicable Period”"). If, prior to upon consummation of the Exchange Offer, the any Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having the status of an unsold allotment in the initial distribution, the Issuers, Company upon the request of the such Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the such Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Subsidiary Guarantors, that are identical in all material respects to the Exchange Notes except for the placement existence of a restrictive legend restrictions on such transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "Private Exchange Notes. The Private Exchange Notes shall be ") (and which are issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange OfferNotes); provided, however, the Issuers shall:
(1) mailshall not be required to effect such exchange if, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer written opinion of counsel for the Issuers (a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior which shall be delivered to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules Initial Purchaser and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offeraffected thereby), such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.exchange
Appears in 2 contracts
Samples: Registration Rights Agreement (Packaged Ice Inc), Registration Rights Agreement (Packaged Ice Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers Company and the Guarantors shall use their respective commercially reasonable efforts to file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the applicable series of the Company (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company and the Guarantors shall (x) use their respective commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 365th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of either the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofor any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the Holders shall have satisfied customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Company or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 365 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (TC3 Health, Inc.), Registration Rights Agreement (TC3 Health, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially their reasonable best efforts to file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company applicable series of the Issuers (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofeither Issuer; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the Holders shall have satisfied customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company either Issuer within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Pinnacle Foods Inc.), Registration Rights Agreement (Glk, LLC)
Exchange Offer. (a) Unless The Issuer and the Guarantors shall:
(i) prepare and file with the SEC as soon as practicable after the date hereof, but in no event later than the Filing Date, a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act with respect to a proposed offer (the "EXCHANGE OFFER") to the Holders to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Securities;
(ii) use their respective best efforts to cause the Exchange Offer Registration Statement to become effective on or prior to the Effectiveness Date;
(iii) use their respective best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer pursuant to its terms; and
(iv) unless the Exchange Offer would not be permitted by applicable law or by a policy of the SEC, commence the Exchange Offer and use their respective best efforts to, on or prior to the 30th Business Day after the Exchange Offer Registration Statement is declared effective, consummate the Exchange Offer and issue Exchange Securities in exchange for all Notes tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers .
(b) The Exchange Securities shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Datebe issued under, and which are entitled to the benefits of of, the Indenture or a trust indenture which that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the TIA) and which, in either case, conforms SEC to effect or maintain the requirements necessary for qualification thereof under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes).
(bc) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer and the Guarantors shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal that is an exhibit to the Exchange Offer Registration Statement, and any related documents;
(2ii) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer thereof is mailed to the Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4iv) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all laws applicable laws, rules and regulations. to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer Offer, the Issuer and the Private Exchange, if any, the Issuers Guarantors shall:
(1i) accept for exchange all Registrable Notes validly tendered and not validly properly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyOffer;
(2ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3iii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in aggregate principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Notes, from the date of original issue of the Notes. Each Exchange Security and each Private Exchange Security shall bear interest at the rate set forth thereon; provided thatprovided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Notes surrendered in the case of any Notes held in global form by a depositary, authentication and delivery exchange therefor from time to time during such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. period.
(f) The Exchange Offer Issuer and the Private Exchange Guarantors shall not be subject to any conditions, other than that (i) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," containing a summary statement of the positions taken or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of policies made by the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding SEC with respect to the Issuers; and potential "underwriter" status of any broker-dealer that is the beneficial owner (iiias defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"). Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including (without limitation) all governmental approvals Participating Brokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Issuer and the Guarantors shall have been obtained, which approvals use their respective best efforts to keep the Issuers deem necessary Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirement of the Securities Act for such period of time as any such Person must comply with such prospectus delivery requirement in order to resell the Exchange Securities; provided that such period shall not exceed 180 days after consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall (as such period may be issued under (i) the Indenture or (ii) an indenture identical in all material respects extended pursuant to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none last paragraph of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterSection 5 hereof)(the "APPLICABLE PERIOD").
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Radiologix Inc), Registration Rights Agreement (Radiologix Inc)
Exchange Offer. (a) Unless the Registrants determine in good faith that the Exchange Offer would violate shall not be permissible under applicable law or any applicable interpretation of the staff of the SECCommission policy, the Issuers Registrants shall use commercially reasonable efforts prepare and cause to file be filed with the SECCommission as soon as reasonably practicable after the Closing Date, no later than the Filing Datesubject to Sections 2(b) and 2(c) of this Agreement, a Registration Statement (the “an "Exchange Offer Registration --------------------------- Statement”") on for an appropriate registration form with respect offer to a registered offer exchange (the “an "Exchange Offer”") to exchange any and all of the Registrable Notes --------- -------------- Securities (subject to Section 2(c)) for a like aggregate principal amount of debt securities pass-through certificates otherwise in all material respects substantially identical to the Initial Securities (the "Exchange Securities") (and which are ------------------- entitled to the benefits of the Company (Pass Through Trust Agreements, which shall be qualified under the “Exchange Notes”)TIA in connection with such registration, guaranteed on a senior basis by the Guarantors, that or agreements which are substantially identical in all material respects to the NotesPass Through Trust Agreements), except that other than (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture Pass Through Trust Agreements or any such substantially identical trust indenture agreements as are the Pass Through Trustee and the Registrants may deem necessary in connection with the Pass Through Trustee's rights and duties or to comply with any requirements of the TIA) and which, in either case, conforms Commission to effect or maintain the requirements necessary for qualification thereof under the TIA; (ii) such changes relating to restrictions on transfer set forth in the Pass Through Trust Agreements; and (iii) such changes to remove liquidated damages provisions contemplated in Section 4 of this Agreement. The Exchange Offer shall be registered under the Securities Act on the appropriate form of Registration Statement and shall comply with all applicable tender offer rules and regulations under the Exchange Act and with all other applicable laws. Subject to the terms and limitations of Section 2(c), such Exchange Offer Registration Statement may also cover any resales of Resale Securities by any Restricted Person, in the manner or manners designated by them which, in any event, is reasonably acceptable to the Registrants. As soon as reasonably practicable after the close of the Exchange Offer, the Registrants shall:
(a) accept for exchange all Initial Securities tendered and not validly withdrawn pursuant to the Exchange Offer;
(b) deliver to the Pass Through Trustee for cancellation all Initial Securities so accepted for exchange; and
(c) cause the Pass Through Trustee promptly to authenticate and deliver to each holder, Exchange Securities equal in principal amount to the Initial Securities of such holder so accepted for exchange. The Issuers Registrants shall (x) use commercially their reasonable best efforts to (i) cause the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed and to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following Effective Date, (ii) keep the Issue Date. Each Holder Exchange Offer open for a period of not less than 20 business days from the date on which notice of the Exchange Offer is delivered to the holders (provided that in no event shall such period be less than the -------- period required under applicable Federal and state securities laws), and (iii) maintain such Exchange Offer Registration Statement continuously effective for a period (the "Exchange Period") of not less than the longer of (A) the period --------------- until the consummation of the Exchange Offer and (B) 90 days after the initial effective date of the Exchange Offer Registration Statement; provided, however, -------- ------- that in the event that all resales of Resale Securities (including, without limitationany resales by broker-dealers that receive Exchange Securities for their own account pursuant to the Exchange Offer) covered by such Exchange Offer Registration Statement have been made, each Participating Brokerthe Exchange Offer Registration Statement need not remain continuously effective for the period set forth in clause (B) above. Each Restricted Person shall notify the Registrants promptly after re-Dealer) who participates selling all Resale Securities held by such Restricted Person which are covered by any such Registration Statement. Each holder of Registrable Securities to be exchanged in the Exchange Offer will (other than any Restricted Person) shall be required as a condition to participating in the Exchange Offer to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: that (i) it is not an Affiliate of the Registrants, (ii) any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities to be received by it shall be acquired in the ordinary course of its business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; and (iiiii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an it shall have no arrangement or understanding with any Person person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Initial Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesSecurities. Upon consummation of the an Exchange Offer in accordance with this Section 2 and compliance with the other provisions of this Section 2, the provisions of this Agreement shall continue Registrants shall, subject to applySections 2(b) and 2(c), mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) Securities pursuant to Section 3 3(a) of this Agreement; provided that the other provisions of this -------- Agreement shall continue to apply as set forth in such provisions. Notwithstanding any other provisions hereof. No securities other than , the Exchange Notes shall be included in the Registrants will ensure that (i) any Exchange Offer Registration Statement or exchange notes and related guarantees issuable any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in respect all material respects with the Securities Act and the rules and regulations of Additional Notes.
the Commission thereunder, (bii) The Issuers shall include within the Prospectus contained in the any Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwiseand any amendment thereto does not, reasonably acceptable to the Initial Purchaserswhen it becomes effective, which shall contain a summary an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status statements therein not misleading and (iii) any prospectus forming part of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective Statement, and any supplement to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements prospectus, does not, as of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of include an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement untrue statement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant material fact or omit to state a material fact necessary in order to make the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided thatstatements therein, in the case light of any Notes held the circumstances under which they were made, not misleading.
(b) In the event that the Registrants reasonably determine in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than good faith that (i) the Exchange Securities would not, upon receipt in the Exchange Offer by any holder of Registrable Securities (other than any Restricted Person and other than any holder who is not acquiring such Exchange Securities in the ordinary course of business or Private Exchangewho has an arrangement with any person to participate in the distribution of such Exchange Securities), as be tradeable by each holder thereof without restriction under the case may beSecurities Act and the Exchange Act and without restriction under applicable blue sky or state securities laws, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair after conferring with counsel, the ability of the Issuers Commission is unlikely to proceed with permit the Exchange Offer Registration Statement to become effective on or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect prior to the Issuers; and date which is 20 business days prior to the Effective Date (except in the circumstances set forth in Section 2(c)) or (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes may not be made in compliance with applicable laws, then the Registrants shall promptly deliver notice thereof (the "Shelf Notice") to the holders of the ------------ Registrable Securities and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification Pass Through Trustee and shall provide that thereafter file an Initial Shelf Registration Statement pursuant to, and otherwise comply with, the Exchange Notes provisions of Section 3(a). Following the delivery of a Shelf Notice in accordance with this Section 2(b) and compliance with Section 3(a), the Registrants shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterfurther obligation under this Section 2.
(c) If, In the event that the Registrants reasonably determine in good faith that (i) because the Resale Securities would not, upon consummation of any change in law or in currently prevailing interpretations of the staff of the SECresale thereof by a Restricted Person to any Person other than another Restricted Person, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold tradeable by each holder thereof without restriction under the Securities Act (other than due solely applicable requirements) and the Exchange Act and without restriction under applicable blue sky or state securities laws or (ii) the Commission is unlikely to permit the Exchange Offer Registration Statement to become effective on or prior to the status of date which is 20 business days prior to the Effective Date solely because such Holder as an affiliate Registration Statement covers resales of the Company within the meaning of the Resale Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentenceby Restricted Persons, then the Issuers Registrants shall promptly deliver a Shelf Notice to the Holders Restricted Persons who are holders of Resale Securities and to the Pass Through Trustee, and the Trustee written notice thereof (Registrants shall thereafter file an Initial Shelf Registration Statement with respect to any such Registrable Securities pursuant to, and otherwise comply with, the “provisions of Section 3(a); provided that such Initial Shelf Notice”) and -------- Registration Statement shall file only cover resales of Registrable Securities by Restricted Persons if a Shelf Registration Notice is not then otherwise required to be delivered pursuant to Section 3 hereof2(b); and, provided, further, that such Initial -------- ------- Shelf Registration Statement covering Registrable Securities held by Restricted Persons shall be kept effective for at least a period of 120 days and is not required to remain effective with respect to Registrable Securities held by Restricted Persons thereafter. Following the delivery of a Shelf Notice in accordance with this Section 2(c) and compliance with Section 3(a), the Registrants shall not have any further obligation under this Section 2 with respect to the filing of an offer to exchange the Registrable Securities held by the Restricted Persons (including, without limitation, any obligation to provide that an Exchange Offer Registration Statement filed pursuant to Section 2(a) cover resales of Resale Securities by Restricted Persons); provided that the -------- provisions of this Section 2 shall otherwise remain in full force and effect with respect to Registrable Securities held by any person other than a Restricted Person.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dynegy Danskammer LLC), Certificate Purchase Agreement (Dynegy Danskammer LLC)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers and the Guarantors shall use their respective commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, Senior Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue (A) from the later of (x) the last date on which interest was paid on the such Senior Notes or (y) if such Senior Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers and the Guarantors shall (x) use their respective commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer and cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed sent to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 365th day following the Issue DateDate (or if such 365th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company either Issuer or any Guarantor or, if it is an affiliate of the Companyeither Issuer or any Guarantor, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Special Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(d)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers and the Guarantors shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(d)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Each of the Issuers and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or after the date on which the Exchange Offer Registration Statement is declared effective, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Purchasers hold any Senior Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the written request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Senior Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mailsend, or cause to be mailedsent, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed sent to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Senior Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Senior Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Senior Notes of such Holder so accepted for exchange; provided that, in the case of any Senior Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Senior Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that that: (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. ; and (iv) the Holders shall have satisfied customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer.
(c) The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Senior Notes outstanding shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Notes outstanding will have the right to vote or consent as a separate class on any matter.
(cd) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 365 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company either Issuer or any Guarantor within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall as promptly as practicable, file with the SEC a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tesoro Corp /New/), Registration Rights Agreement (Tesoro Logistics Lp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Omega Healthcare Investors Inc), Registration Rights Agreement (Omega Healthcare Investors Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, ) that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, (iii) the Exchange Notes shall not contain provisions for additional interest contemplated in Section 4 hereof, and which are (iv) the Exchange Notes shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 225th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuers or, if it is an affiliate of the CompanyIssuers, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable their respective best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; providedpro- vided, however, that such period shall not be required to exceed 90 180 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, Issuers that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable their respective best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 225 days of the Issue Date, (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company Issuers at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Nb Finance Corp), Purchase Agreement (Nb Finance Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of Company and the SEC, the Issuers shall Guarantors jointly and severally agrees to use commercially reasonable its best efforts to file with the SECSEC as soon as practicable after the Closing, but in no event later than the Filing Date, a Registration Statement documents pertaining to an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective registration statement under the Securities Act and will not contain terms with respect to transfer restrictions. The documents pertaining to the Exchange Offer shall will be filed under the Securities Act on the appropriate form (the "Exchange Registration Statement") and the Exchange Offer will comply with all applicable tender offer rules and regulations under the Exchange Act Act. Each of the Company and other applicable laws. The Issuers shall the Guarantors jointly and severally agrees to use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 150th day (or, in the event of any extension of the Exchange Offer required by applicable law, the earliest day following any such extension) following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405) affiliate of any of the Company or, or the Guarantors within the meaning of Rule 405 promulgated under the Securities Act or if it is such an affiliate of the Companyaffiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable and will provide information to be included in that is not acting on behalf of any Person who could not truthfully make the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesforegoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof appliesheld by Participating Broker-Dealers) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Company and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers Company and the Guarantors shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, provided that such period shall not be required to exceed 90 180 days (or such longer period if extended pursuant to the last paragraph of Section 5 hereof 5) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have and having, or which are reasonably likely to be determined to have, the status of as an unsold allotment in the initial distribution, the Issuers, Company and the Guarantors upon the request of the such Initial PurchasersPurchasers shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the such Initial Purchasers, in exchange (the “"Private Exchange”") for such the Notes held by any such HolderInitial Purchasers, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, Company guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on such the Private Exchange Notes. The If possible, the Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if permitted by the CUSIP Service BureauNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;; and
(4iii) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York City time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers Company and the Guarantors shall:
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture, which in all material respects either event will provide that (1) the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture and which, in either case, conforms to (2) the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Private Exchange Notes shall not will be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall will have the right to vote and consent give consents together on all matters presented to such holders for votes or consents as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, If (i1) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted prior to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Offer, the Company and the Guarantors or Holders of at least a majority in aggregate principal amount of the Registrable Notes reasonably determine in good faith that (including Private Exchange Notesi) that were ineligible to be exchanged for the Exchange Notes in the Exchange Offer would not, upon receipt, be freely transferable by such Holders which are not affiliates (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies of the Company or the Guarantors without restriction under the Securities Act and without restrictions under applicable state securities laws, (ii) the interests of the Holders under this Agreement would be adversely affected by the consummation of the Exchange Offer or (iii) after conferring with counsel, the SEC is unlikely to permit the commencement of the Exchange Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the Private Exchange, any holder of the Private Exchange Notes so requests or (3) the Exchange Offer is commenced and not consummated within 30 150 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentenceIssue Date, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a an Initial Shelf Registration pursuant to Section 3 hereof3. Following the delivery of a Shelf Notice to the Holders of Registrable Notes (in the circumstances contemplated by clauses (1) and (3) of the preceding sentence), the Company and the Guarantors shall not have any further obligation to conduct the Exchange Offer or the Private Exchange under this Section 2.
Appears in 1 contract
Samples: Registration Rights Agreement (MWC Acquisition Sub Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use commercially its reasonable best efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an senior secured basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a Broker-Dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes (other than Private Exchange Notes Securities and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerBroker-dealer Dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerBroker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days days, or such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyOffer;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in aggregate principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private ExchangeOffer, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private ExchangeOffer. The Exchange Notes Securities (and the Private Exchange Notes related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, then, in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC or would not be permitted by the staff of the SEC, the Issuers Issuer shall use its commercially reasonable efforts to file cause to be filed with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are to the extent applicable, on an unsecured senior basis (such guarantees, the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), having terms substantially identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and and
(ii) interest thereon shall accrue (A) from the later of (x) the last date on which interest was paid on such Notes or (y) if the Notes are surrendered for Exchange Notes on a date in a period that includes the record date for an interest payment date for an interest payment to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall (x) use its commercially reasonable efforts to (w) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the any Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the such Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a Broker-Dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by the Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerBroker-dealer Dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerBroker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, ; including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period period, if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are to the extent applicable, on an unsecured senior basis, having terms substantially identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the related Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that on which notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as reasonably practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange NotesNotes (and related guarantees), as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. If the Issuer determines in its reasonable judgment that any of the foregoing conditions is not satisfied, the Issuer may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of Holders to withdraw those Registrable Securities, or (c) waive the unsatisfied conditions with respect to the Exchange Offer and accept all properly tendered Registrable Securities that have not been withdrawn. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture Indenture, with such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA, and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the relevant Indenture. The Indenture or such identical indenture shall provide that the Notes and the related Exchange Notes, the Notes and Private Exchange Notes and the Notes issued in exchange therefor shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the related Exchange Notes and Private Exchange Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day, (iii) any Holder of Private Exchange Notes so reasonably requests in writing to the Company Issuer at any time after the consummation of the Exchange Offer with respect to Notes Offer, (including Private Exchange Notesiv) that were ineligible to be exchanged for Exchange Notes because of any change in the Exchange Offer (law or in currently prevailing interpretation of the case staff of Private Exchange Notesthe SEC, were a Holder is not issued in exchange for Notes that are or were eligible permitted to be exchanged participate in the Exchange Offer) , or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (ivv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (for delivery to the Trustee Holders) written notice thereof (the “Shelf Notice”) and, in lieu of (or in the case of the preceding clauses (iii) and (v), in addition to) effecting registration of the Exchange Securities, shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (LVB Acquisition, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company and guarantees of the Guarantors (collectively, the “Exchange Notes”)) that are, guaranteed on a senior basis by the Guarantorsin each case, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from (A) the later of (1) the last date on which interest was paid on the Notes or (2) if the Note is surrendered for exchange on a date between the record date for interest payment and that interest payment date, the interest payment date, or, (B) if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially their reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 180th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-DealerDealer (as defined below)) who participates in the Exchange Offer will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer Offer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in in, the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Notes, Exchange Notes as to which clause Section 2(c)(iv) hereof appliesapplies and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 150 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes Securities acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes Securities held by any such Holder, a like principal amount of notes of the Company and guarantees of the Guarantors (collectively, the “Private Exchange Notes”) of the Companythat are, guaranteed by the Guarantorsin each case, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private ExchangeExchange shall have been obtained. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of the Issue Date, (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 60 days after such Holder first becomes aware the consummation of such restrictionsthe Exchange Offer, then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Heritage Property Investment Limited Partnership)
Exchange Offer. (a) Unless the Exchange Offer would violate not be permitted by applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day 5th Business Day following the Issue Dateexpiration of the Exchange Offer. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities and the Notes (and the related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days days, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Company deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days 5 Business Days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation expiration of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iviii) in the case of any holder of Private Exchange Notes or any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on notifies the date Company within 20 Business Days after the consummation of the exchange Exchange Offer that such Holder (A) is prohibited by law or currently prevailing interpretations of the staff of the SEC from participating in the Exchange Offer, (B) may be sold without restriction under not resell the Exchange Securities Act (other than due solely acquired by it in the Exchange Offer to the status of public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not available for such Holder as resales, or (C) is a broker-dealer and owns outstanding Notes acquired directly from the Company or an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsCompany, in the case of each of clauses (i) to and including (iviii) of this sentence, then the Issuers Company shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Great Lakes Dredge & Dock CORP)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC or would not be permitted by the staff of the SEC, the Issuers shall use their commercially reasonable efforts to file cause to be filed with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed with respect to Exchange Notes issued in exchange for Senior Notes on a an unsecured senior basis (the “New Senior Guarantees”) and guaranteed with respect to Exchange Notes issued in exchange for Senior Subordinated Notes on an unsecured senior subordinated basis by the GuarantorsGuarantors (the “New Senior Subordinated Guarantees” and, collectively, the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are have terms substantially identical in all material respects to the Senior Notes or Senior Subordinated Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Senior Notes or Senior Subordinated Notes, as applicable, or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the applicable Indenture or a trust indenture which is identical in all material respects to the applicable Indenture (other than such the changes to the applicable Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofor any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable aceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 180 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed with respect to Private Exchange Notes issued in exchange for Senior Notes on an unsecured senior basis (the “Private Senior Guarantees”) and guaranteed with respect to Private Exchange Notes issued in exchange for Senior Subordinated Notes on an unsecured senior subordinated basis (the “Private Senior Subordinated Guarantees”) by the Guarantors, that are have terms substantially identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number and ISIN as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as reasonably practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3a) cause the Trustee to authenticate and deliver promptly to each Holder of Senior Notes, Exchange Notes or Private Exchange Notes, as the case may be, with New Senior Guarantees or Private Senior Guarantees, as the case may be, and equal in principal amount to the Senior Notes of such Holder so accepted for exchange and (b) cause the Trustee to authenticate and deliver promptly to each Holder of Senior Subordinated Notes, Exchange Notes or Private Exchange Notes, as the case may be, with New Senior Subordinated Guarantees or Private Senior Subordinated Guarantees, as the case may be, and equal in principal amount to the Senior Subordinated Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the applicable Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. If the Company determines in its reasonable judgment that either of the foregoing conditions is not satisfied, the Company may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of Holders to withdraw those Registrable Securities, or (c) waive the unsatisfied conditions with respect to the Exchange Offer and accept all properly tendered Registrable Securities that have not been withdrawn. The Exchange Notes Securities and the Private Exchange Notes (and the related guarantees) shall be issued under (i) the applicable Indenture or (ii) an indenture indentures identical in all material respects to the Indenture applicable Indenture, with such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA, and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the applicable Indenture. The Senior Notes Indenture or such identical indenture shall provide that the Senior Notes and the Exchange Notes, Notes or the Private Exchange Notes and the Notes issued in exchange therefor shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Notes will have the right to vote or consent as a separate class on any matter. The Senior Subordinated Notes Indenture or such identical indenture shall provide that the Senior Subordinated Notes and the Exchange Notes or the Private Exchange Notes issued in exchange therefor shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Subordinated Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day, (iii) any Holder of Private Exchange Notes so reasonably requests in writing to the Company at any time after the consummation of the Exchange Offer with respect Offer, (iv) because of any change in law or in currently prevailing interpretation of the staff of the SEC, a Holder is not permitted to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes participate in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 60 days after such Holder first becomes aware the consummation of such restrictionsthe Exchange Offer, in the case of each of clauses (i) to and including (ivv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and, in lieu of (or in the case of the preceding clauses (iii) and (v), in addition to) effecting registration of the Exchange Securities, shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Aleris International, Inc.)
Exchange Offer. (a) Unless The Issuer and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall Guarantors agree to use commercially their reasonable best efforts to file with the SECSEC as soon as practicable after the Closing Date, but in no event later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company (Issuer and the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that Guarantors which are substantially identical in all material respects to the NotesSecurities, except that the identity of the Guarantors may be different from those Subsidiary Guarantors that initially guaranteed the Securities pursuant to the Indenture so long as the Securities are at all times guaranteed in compliance with the Indenture (ithe "Exchange Securities") the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer shall will be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and will comply with all applicable tender offer rules and regulations under promulgated pursuant to the Exchange Act and other shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws. The Issuers Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law or interpretation of the Staff of the SEC. No securities shall be included in the Registration Statement covering the Exchange Offer other than the Transfer Restricted Securities and the Exchange Securities. The Issuer and the Guarantors agree to use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under pursuant to the Securities Act on or before the Effectiveness Target Date; (y) keep the Exchange Offer open for at least not less than 30 days (or such longer if period required by applicable law) after the date that the notice of the Exchange Offer referred to below is mailed to Holders; and (z) consummate the Exchange Offer on or prior to within 180 days after the 360th day following the Issue Closing Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” (distribution of the Exchange Securities, and that such Holder is not an affiliate of the Issuer within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions Rule 405 of the Securities Act; Act (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, or that if it is such an affiliate of the Companyaffiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable applicable). Each Holder that is not a Participating Broker-Dealer will be required to represent that it is not engaged in, and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends does not intend to engage in a in, the distribution of the Exchange Notes; and (v) if such Securities. Each Holder that is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and Dealer will be required to acknowledge that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) as required by law in connection with any resale of the such Exchange NotesSecurities. Upon consummation of the Exchange Offer in accordance with this Section 2Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, Issuer and the Company Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) Transfer Restricted Securities pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Issuer and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.dealer
Appears in 1 contract
Exchange Offer. (a) Unless The Company and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Guarantors shall use commercially reasonable efforts to file -------------- with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form -------------------------------------- with respect to a registered offer (the “"Exchange Offer”") to exchange any and -------------- all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that ) which are identical in all material respects to the Securities (the "Exchange Notes"), except that (i) -------------- the Exchange Notes (and the Guarantors' Guarantees thereof) shall have been registered pursuant to an effective Registration Statement under the Securities Act, shall not contain provisions for Additional Interest, and shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawslaw. The Issuers Company and the Guarantors shall use their respective best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days not less than 20 Business Days (or longer if required by applicable law) after the date that notice of the such Exchange Offer is mailed to Holders; and (z) consummate the such Exchange Offer on or prior to the 360th 180th day following the Issue Date. For purposes of this Section 2(a) only, if after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such interference, until the Exchange Offer may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: that (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; , (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company or any Guarantor within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; Act, (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is engaging in or intends not a broker-dealer, such Holder is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; and , (v) if such Holder is a Participating Brokerbroker-Dealer, such Holder has dealer that will receive Exchange Notes for its own account in exchange for Securities that were acquired the Registrable Notes as a result of market-making activities or other trading activities and that it activities, such Holder will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of such Exchange Notes and (vi) such Holder is not acting on behalf of any Persons who could not truthfully make the Exchange Notesforegoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis ------- mutandis, solely with respect to Registrable Notes that are Private Exchange -------- Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been --------------------------- publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Company and the Guarantors shall use commercially reasonable their respective best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; provided, however, that such period shall not be required to exceed 90 180 days -------- ------- after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “"Applicable Period”"). ----------------- If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, the Issuers, Company and the Guarantors upon the request of the Initial Purchasers, Purchasers shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “each, a "Private Exchange”") for such Notes held by any such Holderthe Initial Purchasers, a like ---------------- principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, Company (guaranteed by the Guarantors, ) that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") except for the placement of a restrictive legend ---------------------- on such Private Exchange Notes. The Private Exchange Notes shall be (and which are issued pursuant to the same indenture as the Exchange Notes). If possible, the Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the each Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration StatementStatement relating to such Exchange Offer, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable their respective best efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer longer, if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; , (ii) no action or proceeding shall have been is instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company and the Guarantors to proceed with the Exchange Offer or the Private Exchange, Exchange and no material adverse development shall have has occurred in any existing action or proceeding with respect to the Issuers; Company or the Guarantors that would materially impair the ability of the Company and the Guarantors to consummate the Exchange Offer or the Private Exchange and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Company and the Guarantors deem necessary for the consummation of the Exchange Offer or the Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification event has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Company and the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of after the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case holder of Private Exchange NotesNotes so requests, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions), in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant ------------ to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Cadmus Communications Corp/New)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a senior unsecured basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”) that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 450th day following the Issue DateDate (or if such 450th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), any Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by the Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons Holders (including Participating Broker-Dealers) subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period in no event shall not the Issuer be required to exceed 90 keep the Exchange Offer Registration Statement effective and available for more than 180 days after consummation of the Exchange Offer, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, immediately prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the written request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such HolderInitial Purchaser, a like principal amount of notes (including the guarantees with respect thereto, the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 450 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuer at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer in writing within 30 days after such Holder first becomes aware of such restrictions, then, in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee with a copy to the Trustee registrar (to deliver to the Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Samson Holdings, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff Staff of the SEC, the Issuers shall Company shall, for the benefit of the Holders, at the Company’s cost, use its commercially reasonable efforts to (A) file with the SEC, no later than the Filing Date, a Registration Statement (the “SEC an Exchange Offer Registration Statement”) Statement on an appropriate registration form under the Securities Act with respect to a registered offer (proposed Exchange Offer and the “Exchange Offer”) issuance and delivery to the Holders, in exchange any and all for each Series of the Registrable Notes for Securities, of a like aggregate principal amount of debt securities the corresponding Series of the Company Exchange Securities, (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (iB) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; Act, and (yC) keep cause the Exchange Offer open for at least 30 to be consummated not later than 365 calendar days (or longer if required by applicable law) after following the date that notice of this Agreement. In order to participate in the Exchange Offer, each Holder must represent to the Company at the time of the consummation of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: that it (i) any Exchange is not an Affiliate of the Company, (ii) is not a broker-dealer who tendered Notes acquired in exchange directly from the Company or the Guarantors for Registrable Notes tendered are being acquired its own account, (iii) is acquiring the Exchange Securities in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder ’s business and (iv) is not engaged in and does not intend to engage in and has an arrangement no arrangements or understanding understandings with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and Securities (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited tocollectively, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-DealerHolder Representations”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1a) mail, or cause to be mailed, make available to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2b) use commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 30 20 business days after the date that notice of the Exchange Offer thereof is mailed to the Holders (or longer at the option of the Company or if required by applicable law) (such period referred to herein as the “Exchange Period”);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5c) otherwise comply in all material respects with all applicable lawslaws relating to the Exchange Offer. The Exchange Securities shall be issued under (i) the applicable Indenture or (ii) an indenture identical in all material respects to the applicable Indenture and which, rules and regulationsin either case, has been qualified under the Trust Indenture Act. As soon as reasonably practicable after the close expiration of the Exchange Offer and the Private Exchange, if anyOffer, the Issuers Company shall:
(1i) accept for exchange all Registrable Notes validly Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer and in accordance with the Private Exchange, if anyterms of the Exchange Offer Registration Statement;
(2ii) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3iii) cause the Trustee promptly to authenticate and deliver promptly Exchange Securities to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal Registrable Securities so accepted for exchange in a principal amount equal to the Notes principal amount of the corresponding Series of Registrable Securities of such Holder so accepted for exchange; provided that. Interest on each Exchange Security will accrue from the last date on which interest was paid on the Registrable Security surrendered in exchange therefor or, in if no interest has been paid on the case Registrable Security, from the date of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirementoriginal issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) that the Exchange Offer Offer, or Private Exchange, as the case may bemaking of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff Staff of the SEC; , (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have made the Holder Representations and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the Securities Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency which might materially with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterOffer.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts (A) prepare and, on or prior to 90 days (the "FILING DATE") after the date of original issuance of the Notes (the "ISSUE DATE"), file with the SEC, no later than the Filing Date, SEC a Registration Statement (under the “Exchange Offer Registration Statement”) on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis (B) use their best efforts to cause the Registration Statement relating to the Exchange Offer to be declared effective by the Guarantors, that are identical in all material respects SEC under the Securities Act on or prior to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from 150 days after the Issue Date, and which are entitled (C) commence the Exchange Offer and use their best efforts to issue, on or prior to the benefits Consummation Date, the Exchange Notes. The offer and sale of the Indenture or a trust indenture which is identical in all material respects Exchange Notes pursuant to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall be registered pursuant to the Securities Act on an appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable state securities or Blue Sky laws. The Issuers Exchange Offer shall (x) use commercially reasonable efforts not be subject to cause any condition, other than that the Exchange Offer Registration Statement to be declared effective under the Securities Act on does not violate any applicable law or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (regulation or longer if required by applicable law) after the date that notice interpretation of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business staff of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesSEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement Issuers shall continue to apply, mutatis mutandis, solely have no further registration obligations other than with respect to Registrable Notes that are (i) Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv(ii) is applicable and Exchange Notes held by Participating Broker-Dealers, Dealers and the Company shall have no further obligation to register Registrable (iii) Notes (other than Private Exchange Notes and or Exchange Notes as to which clause 2(c)(ivSection 3(a)(ii) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional other than the Exchange Notes.
(b) The Issuers shall include within may require each holder of Notes, as a condition to its participation in the Prospectus Exchange Offer, to rep- resent to the Issuers and their counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of (i) any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer holder will be acquired in the Exchange Offer ordinary course of its business, (a “Participating Broker-Dealer”), whether ii) such positions holder will have no arrangement or policies have been publicly disseminated by understanding with any person to participate in the staff distribution (within the meaning of the SEC or such positions or policies represent the prevailing views Securities Act) of the staff Exchange Notes and (iii) such holder is not an Affiliate of an Issuer, or if it has such an arrangement or understanding or is an Affiliate of an Issuer, it will comply with the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies registration and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent applicable. If the holder is not a broker-dealer, it will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Notes. If the holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making activities or other trading activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes.
(c) If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Issuers, upon the request of the Initial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaser and any such holder, in exchange (the "PRIVATE EXCHANGE") for such Notes held by the Initial Purchaser and any such holder, a like principal amount of debt securities of the Company, guaranteed by the Guarantors on a senior basis, that are identical in all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable policies and regulations law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Participating Broker-DealersNotes validly tendered will be accepted for exchange;
(ii) The date of acceptance for exchange (the "EXCHANGE DATE"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and include issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Issuers and the Initial Purchaser acknowledge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Issuers and the Initial Purchaser also acknowledge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement describing to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in compliance connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. The In light of the foregoing, if requested by a Participating Broker-Dealer, the Issuers shall agree (x) to use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such a period of time up to six months after the Consummation Date or such earlier date as is necessary to comply with applicable law each Participating Broker-Dealer shall have notified the Company in connection with any resale of the Exchange Notes; provided, however, writing that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously (y) to comply with the delivery provisions of the Exchange Notes issue and deliver to the Initial PurchasersSection 5 of this Agreement, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private ExchangeExchange Registration Statement, if any;and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver The Initial Purchaser shall have no liability to the Trustee for cancellation all Registrable Notes so accepted for exchange; andany Participating Broker-Dealer with respect to any request made pursuant to Section 2(e).
(3g) cause the Trustee to authenticate and deliver promptly to Interest on each Holder of Notes, Exchange Notes Note or Private Exchange Notes, as Note will accrue (A) from the case may be, equal in principal amount to the Notes later of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer last interest payment date on which interest was paid on the Note surrendered in exchange therefor, or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no action or proceeding shall have interest has been instituted or threatened in any court or by any governmental agency which might materially impair paid on the ability of Notes, from the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and Issue Date.
(iiih) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Kimberton Enterprises Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate such an offer is not permitted by applicable law or any applicable interpretation of the staff of the SECSEC policy, the Issuers shall each Obligor, jointly and severally, agrees to use commercially its reasonable best efforts to file with the SECSEC as soon as practicable after the Closing, but in no event later than the Filing Date, a Registration Statement registration statement covering an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes"), except that guaranteed by the Guarantors (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects Indenture, except that the Exchange Notes shall have been registered pursuant to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification an effective registration statement under the TIASecurities Act and will not contain terms with respect to transfer restrictions. The Exchange Offer shall will be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement"), and the Exchange Offer will comply with all applicable tender offer rules and regulations under the Exchange Act Act. Each Obligor jointly and other applicable laws. The Issuers shall severally agrees to use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer with respect to all Notes validly tendered on the earliest practicable date after the Exchange Registration Statement is declared effective (in any event on or prior to the 360th Consummation Date) (or, in the event of any extension of the Exchange Offer required by applicable law, the earliest day following the Issue Dateany such extension). Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in affiliate of any Obligor within the meaning of Rule 405) of 405 promulgated under the Company or, Securities Act or if it is such an affiliate of the Companyaffiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder norapplicable, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with is not acting on behalf of any Person who could not truthfully make the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesforegoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Obligors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof appliesheld by Participating Broker-Dealers) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Obligors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the reasonable judgment of the Initial Purchaser, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Each Obligor shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, provided that such period shall not be required to exceed 90 180 days (or such longer period if extended pursuant to the last paragraph of Section 5 hereof 5) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having, or which are reasonably likely to be determined to have, the status of as an unsold allotment in the initial distribution, the Issuers, Obligors upon the request of the Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such Holderthe Initial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Obligors that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes"), guaranteed by the Guarantors (and which are entitled to the benefits of the Indenture) except for the placement of a restrictive legend on such the Private Exchange Notes. The If possible, the Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if permitted by no interest has been paid on the CUSIP Service BureauNotes, from the Issue Date. Holders of Exchange Notes and Private Exchange Notes shall vote together as a class on all matters under the Indenture. In connection with the Exchange Offer, the Issuers Obligors shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;; and
(4iii) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York City time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers Obligors shall:
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that.
(c) If (1) prior to the consummation of the Exchange Offer, the Obligors or Holders of at least a majority in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent aggregate principal amount thereto for of the account of such Holders Registrable Notes reasonably determine in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than good faith that (i) the Exchange Offer or Private ExchangeNotes would not, as the case may beupon receipt, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or be freely transferable by any governmental agency such Holders which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, affiliates (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) of the Obligors without restriction under the Securities Act and without restrictions under applicable state securities laws or (ii) after conferring with counsel, the SEC is unlikely to permit the commencement of the Exchange Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the Private Exchange, any holder of the Private Exchange Notes so notifies requests or (3) the Company within 30 days after such Holder first becomes aware of such restrictions, in Exchange Offer is commenced and not consummated prior to the case of each of clauses (i) to and including (iv) of this sentenceConsummation Date, then the Issuers Obligors shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a an Initial Shelf Registration pursuant to Section 3 hereof3. The parties hereto agree that following the delivery of a Shelf Notice to the Holders of Registrable Notes (in the circumstances contemplated by clauses (1) and (3) of the preceding sentence), the Obligors shall not have any further obligation to conduct the Exchange Offer or the Private Exchange under this Section 2.
Appears in 1 contract
Samples: Registration Rights Agreement (River Marine Terminals Inc)
Exchange Offer. (a) Unless The Company and the Exchange Offer would violate Guarantor shall file with the SEC, to the extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, a Registration Statement no later than the Filing Date, a Registration Statement Date for an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities (other than the Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Securities (the "Exchange Notes, except ") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and whichthat, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes (other than Private Exchange Notes, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall Company and the Guarantor agree to use their respective reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 230th day following the Issue Date. If after such Exchange Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such interference until the Exchange Offer may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from Act and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company or the registration and prospectus delivery requirements Guarantor within the meaning of the Securities Act to and is not acting on behalf of any persons or entities who could not truthfully make the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesforegoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company and the Guarantor shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which that shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Company and the Guarantor shall use commercially their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 210 days after the consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, any of the Initial Purchasers hold holds any Notes Securities acquired by them it and having, or that have are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall Purchaser simultaneously with the delivery of the Exchange Notes in the Exchange Offer, shall issue and deliver to the Initial Purchasers, Purchaser in exchange (the “"Private Exchange”") for such Notes Securities held by any such Holder, the Initial Purchaser a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Issuers that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and that are issued pursuant to the same indenture as the Exchange Notes), except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and the Private Exchange Notes will accrue from the later of (x) (i) the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or (ii) if permitted by the CUSIP Service BureauSecurities are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or, (y) if no interest has been paid on the Securities, from the Issue Date. In connection with the Exchange Offer, the Issuers Company and the Guarantor shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(43) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers Company and the Guarantor shall:
(1) accept for exchange all Registrable Notes validly Securities properly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and event shall provide that (1) the Exchange Notes shall not be subject to any transfer restrictions and (2) the Private Exchange Notes shall be subject to the transfer restrictions set forth or referred to in the Indenturerestrictive legend placed on such Private Exchange Notes. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, following the date hereof there is announced a change in SEC policy with respect to exchange offers such as the Exchange Offer, that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Exchange Offer is permitted by applicable federal law, the Company and the Guarantor hereby agree to seek a no-action letter or other favorable decision from the SEC allowing the Company and the Guarantor to consummate an Exchange Offer of Exchange Notes for the Notes. The Company and the Guarantor hereby agree to pursue the issuance of such a decision to the level of the staff of the SEC. In connection with the foregoing, the Company and the Guarantor hereby agree to take all such other actions as may be requested by the SEC or its staff or otherwise required in connection with the issuance of such decision, including without limitation (A) participating in telephonic conferences with the Commission, (B) delivering to the SEC or its staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that such an exchange offer should be permitted and (C) diligently pursuing a resolution (which need not be favorable) by the SEC or its staff. If, (i) notwithstanding the efforts contemplated above, the Issuers are not permitted to effect an Exchange Offer, (ii) the holder of Private Exchange Notes so requests within 20 business days after the consummation of the Private Exchange, (iii) because of any change changes in law or in currently prevailing interpretations of the staff of the SEC, a Holder (other than an Initial Purchaser holding Securities acquired directly from the Issuers are Issuers) is not permitted to effect the Exchange Offer, (ii) participate in the Exchange Offer is not consummated within 360 days of and requests the Issue Date, (iii) any Holder so requests Company in writing to the Company at any time within 20 business days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes have such Holder's Securities included in the Exchange Offer (or in the case of Private Exchange Notesa registration statement, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or the Guarantor within the meaning of the Securities Act) and so notifies such Holder requests the Company in writing within 30 20 business days after the consummation of the Exchange Offer to have such Holder first becomes aware Holder's Securities included in a registration statement), then the Company shall promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and in the case of such restrictionsclauses (i) and (iii), all Holders, in the case of each clause (ii), the Holders of clauses (i) to the Private Exchange Notes and including in the case of clause (iv) of this sentence), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) affected Holder, and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Senior Notes Registration Rights Agreement (Waste Management Holdings Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any and permitted by an applicable interpretation of the staff Staff of the SEC, the Issuers shall use commercially reasonable efforts agree to file with the SECSEC as soon as practicable after the Closing Date, but in no event later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to the Notes, except that Notes and guaranteed by the Guarantors with terms identical in all material respects to the Guarantees (ithe "Exchange Securities") the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than with only such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of the Indenture under the TIA) and which, in either case, conforms to the requirements necessary for qualification which will be qualified under the TIA. The ), except that the Exchange Offer Securities shall comply with all applicable tender offer rules and regulations have been registered pursuant to an effective Registration Statement under the Exchange Securities Act and other applicable lawsshall contain no restrictive legend thereon. The Issuers shall (x) agree to use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; Holders and (z) to consummate the Exchange Offer on or prior to the 360th day following Consummation Date. The Exchange Offer will be registered under the Issue DateSecurities Act on the appropriate form (the "Exchange Registration Statement") and will comply with all applicable tender offer rules and regulations under the Exchange Act. If after such Exchange Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement until the offering of the Registrable Securities pursuant to such Exchange Registration Statement may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required deemed to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of Rule 501(b) of Regulation D under the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired full power and authority to exchange the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of exchange for the Exchange NotesSecurities. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutatis, mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable Securities and Exchange Notes Securities held by Participating Broker-DealersDealers and any Securities held by a Market Maker, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities, Securities held by a Market Maker in accordance with Section 11 hereof, and Exchange Notes Securities as to which clause 2(c)(iv(c)(1)(i) hereof applies) pursuant to Section 3 hereofof this Agreement. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A one or as otherwise, more section(s) reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC (which are available to the Issuers) with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff Staff of the SEC or such positions or policies policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations Staff of the SEC, subject in the case of unpublished positions or policies of the Staff of the SEC, to the reasonable concurrence of counsel to the Company. Such section(s) shall also allow the use of the Prospectus prospectus by all Persons persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActSecurities. The Issuers shall use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, Securities,provided that such period shall not be required to exceed 90 180 days (or such longer period if extended pursuant to the last paragraph of Section 5 hereof 5) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the an Initial Purchasers hold Purchaser holds any Notes Securities acquired by them that have and having the status of an unsold allotment in the initial distributiondistribution or if any Market Maker holds any Securities (whether acquired in market making activities or having the status of an unsold allotment), the Issuers, Issuers shall upon the request of the such Initial PurchasersPurchaser, shall simultaneously with the delivery of the applicable Exchange Notes Securities in the Exchange Offer, issue and deliver to the such Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such Notes the Securities held by any such Holderthe Initial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes Securities (the "Private Exchange Securities") (and which are issued pursuant to the Indenture) except for the placement of a restrictive legend on such Private Exchange NotesSecurities. The If possible, the Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Securities. Interest on the Exchange Securities and Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if permitted by no interest has been paid on the CUSIP Service Bureau. In connection with Notes, from the Issue Date.
(c) If (1) prior to the consummation of the Exchange Offer, the Issuers shall:
(1) mail, Company reasonably determines in good faith or cause to be mailed, to each Holder Holders of record entitled to participate at least a majority in the Exchange Offer a copy aggregate principal amount of the Prospectus forming part of Registrable Securities notify the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date Company that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address they have reasonably determined in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than good faith that (i) in the opinion of counsel, the Exchange Offer or Private ExchangeSecurities would not, as the case may beupon receipt, does be tradable by such Holders who are not violate applicable law or any applicable interpretation affiliates of the staff of Company without restriction under the SEC; Securities Act and without restrictions under applicable blue sky or state securities laws or (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability opinion of counsel, the Issuers SEC is unlikely to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for permit the consummation of the Exchange Offer or and/or (2) subsequent to the consummation of the Private Exchange. The Exchange Notes and , holders of at least a majority in aggregate principal amount of the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects Securities so request with respect to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
Securities and/or (c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii3) the Exchange Offer is commenced and not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing prior to the Company at 45th day following the Consummation Date for any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentencereason, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall thereafter file a an Initial Shelf Registration as set forth in Section 3 (which only in the circumstances contemplated by clause (2) of this sentence will relate solely to the Private Exchange Securities) pursuant to Section 3 hereof3. The parties hereto agree that, following the delivery of a Shelf Notice to the Holders of Registrable Securities (only in the circumstances contemplated by clauses (1) and/or (3) of the preceding sentence), the Issuers shall not have any further obligation to conduct the Exchange Offer or the Private Exchange under this Section 2.
Appears in 1 contract
Samples: Registration Rights Agreement (Triton PCS Holdings Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers Company and the Guarantors shall use their respective commercially reasonable efforts to file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the applicable series of the Company (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company and the Guarantors shall (x) use their respective commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue Date (the “Exchange Date”). Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the either Company or any Guarantor or, if it is an affiliate of either the CompanyCompany or any Guarantor, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(c)(3) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(c)(3) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the Holders shall have satisfied customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer, including the representations made in Section 2(a) hereof. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) . If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Company or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 270 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Company shall file with the Exchange Offer would violate SEC, to the extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form no later than the applicable Filing Date with respect to a registered an offer to exchange (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities (other than the Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes (the "Exchange Notes, except ") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the TIA) and which, in either case, conforms SEC to effect or maintain the requirements necessary for qualification thereof under the TIA)), except that the Exchange Notes (other than Private Exchange Notes, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall (x) Company agrees to use commercially its reasonable best efforts to (i) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the applicable Effectiveness Date; (yii) keep the Exchange Offer open for at least 30 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer first is mailed to Holders; and (ziii) consummate the Exchange Offer on or prior to the 360th 230th day following the Issue Closing Date. If after such Exchange Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is delayed or suspended by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such delay or suspension until the Exchange Offer may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from Act and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act to and is not acting on behalf of any Persons who could not truthfully make the extent applicable and will provide information to be included in foregoing representations, as well as any additional representations required or requested by the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in SEC or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesits staff. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-DealersDealers (as defined below), and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv2(d)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which Purchasers that shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 210 days after the consummation of the Exchange Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, any of the Initial Purchasers hold holds any Notes acquired by them it and having, or that have are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the any such Initial Purchasers, shall Purchaser simultaneously with the delivery of the Exchange Notes in the Exchange Offer, shall issue and deliver to the such Initial Purchasers, Purchaser in exchange (the “"Private Exchange”") for such Notes held by any such Holder, Initial Purchaser a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and that are issued pursuant to the same indenture as the Exchange Notes), except for the placement of a restrictive legend on such Private Exchange Notes. The If permissible, the Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the SEC or the staff of the SEC, the Issuers Issuer and the Company shall use commercially reasonable efforts (A) prepare and, on or prior to 90 days after the date of original issuance of the Bonds (the "Issue Date"), file with the SEC, no later than the Filing Date, SEC a Registration Statement (under the “Exchange Offer Registration Statement”) on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Issuer and the Company to exchange any and all the holders of the Registrable Notes Bonds to issue and deliver to such holders, in exchange for Bonds, a like aggregate principal amount of debt securities of Exchange Bonds, (B) use their best efforts to cause the Company (Registration Statement relating to the “Exchange Notes”), guaranteed on a senior basis Offer to be declared effective by the Guarantors, that are identical in all material respects SEC under the Securities Act on or prior to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from 180 days after the Issue Date, and which are entitled (C) commence the Exchange Offer and use best efforts to issue, on or prior to the benefits Consummation Date, the Exchange Bonds. The offer and sale of the Indenture or a trust indenture which is identical in all material respects Exchange Bonds pursuant to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall be registered pursuant to the Securities Act on the appropriate form (the "Exchange Registration Statement") and duly registered or qualified under state securities or Blue Sky laws in accordance with Section 5(h) and will comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable such state securities or Blue Sky laws. The Issuers Exchange Offer shall (x) use commercially reasonable efforts not be subject to cause any condition, other than that the Exchange Offer Registration Statement to be declared effective under does not violate any applicable law or interpretation of the Securities Act on SEC or before the Effectiveness Date; (y) keep staff of the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice SEC. Upon consummation of the Exchange Offer is mailed in accordance with this Section 2, the Issuer and the Company shall have no further registration obligations other than with respect to Holders; and (zi) consummate the Private Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder Bonds, (including, without limitation, each ii) Exchange Bonds held by Participating Broker-DealerDealers and (iii) who participates Bonds or Exchange Bonds as to which Section 3(a)(ii) hereof applies. No securities shall be included in the Exchange Registration Statement other than the Exchange Bonds.
(b) The Issuer and the Company may require each holder of Bonds as a condition to its participation in the Exchange Offer will be required to represent to the Issuers Issuer and the Company and their counsel in writing (which may be contained in the applicable letter of transmittal) that: that at the time of the consummation of the Exchange Offer (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being Bonds received by such holder will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an holder will have no arrangement or understanding with any Person person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; Bonds and (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder holder is not an “affiliate” (as defined in Rule 405) Affiliate of the Company orIssuer or the Company, or if it is an affiliate Affiliate of the Issuer or the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesapplicable.
(bc) The Issuers shall include within To the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A extent not prohibited by any applicable law or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff applicable interpretation of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). Ifif, prior to consummation of the Exchange Offer, the Initial Purchasers hold Purchaser holds any Notes Bonds acquired by them that have it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Bonds is not entitled to participate in the IssuersExchange Offer, the Issuer and the Company upon the request of the Initial PurchasersPurchaser or any such holder shall, shall simultaneously with the delivery of the Exchange Notes Bonds in the Exchange Offer, issue and deliver to the Initial PurchasersPurchaser and any such holder, in exchange (the “"Private Exchange”") for such Notes Bonds held by the Initial Purchaser and any such Holderholder, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by Issuer and the Guarantors, Company that are identical in all material respects to the Exchange Notes except for Bonds (the placement of a restrictive legend on such "Private Exchange Notes. The Private Exchange Notes shall be Bonds") (and which are issued pursuant to the same indenture as the Exchange Notes and Bonds). The Private Exchange Bonds shall bear the same CUSIP number as the Exchange Notes if Bonds.
(d) Unless the Exchange Offer would not be permitted by any applicable law or interpretation of the CUSIP Service Bureau. In connection with SEC or the staff of the SEC, the Issuer and the Company shall mail the Exchange OfferOffer Prospectus and appropriate accompanying documents, the Issuers shallincluding appropriate letters of transmittal, to each holder of Bonds providing, in addition to such other disclosure as are required by applicable law:
(1i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed being made pursuant to Holders this Agreement and that all Bonds validly tendered will be accepted for exchange;
(or longer if ii) the date of acceptance for exchange (the "Exchange Date"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(3iii) utilize the services that holders of Bonds electing to have a depositary for Bond exchanged pursuant to the Exchange Offer will be required to surrender such Bond, together with an the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City city of New York;
(4) permit Holders to withdraw tendered Notes at any time specified in the notice prior to the close of business, New York time, business on the last Business Day on which the Exchange Offer remains openDate; and
(5iv) otherwise comply in that holders of Bonds that do not tender all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Bonds not tendered. Promptly after the Exchange Date, the Issuer and the Private Exchange, if any, the Issuers Company shall:
(1i) accept for exchange all Registrable Notes Bonds or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;; and
(2ii) deliver deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Notes Bonds or portions thereof so accepted for exchange; and
(3) exchange by the Issuer and the Company, and issue, cause the Trustee under the Indenture (or the indenture pursuant to authenticate which the Exchange Bonds are issued) to authenticate, and deliver promptly mail to each Holder holder of NotesBonds, Exchange Notes Bonds equal in principal amount to the principal amount of the Bonds surrendered by such holder.
(e) The Issuer, the Company and the Initial Purchaser acknowledge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Bonds that were received by such broker-dealer for its own account in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Bonds (other than a resale of an unsold allotment resulting from the original offering of the Bonds). The Issuer, the Company and the Initial Purchaser also acknowledge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker- Dealers may resell the Exchange Bonds, without naming the Participating Broker-Dealers or specifying the amount of Exchange Bonds owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act In connection with re-sales of Exchange Bonds for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. In light of the foregoing, if requested by a Participating Broker-Dealer, the Issuer and the Company agree (x) to use their best efforts to keep the Exchange Registration Statement continuously effective for a period of up to 6 months or such earlier date as each Participating Broker- Dealer shall have notified the Company in writing that such Participating Broker-Dealer has resold all Exchange Bonds acquired Exchange Offer, (y) to comply with the provisions of Section 5 of this Agreement, as they relate to the Exchange Offer and the Exchange Registration Statement, and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuer and the Company and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(f) The Initial Purchaser shall have no liability to any Participating Broker-Dealer with respect to any request made pursuant to Section 2(e).
(g) Accrued but unpaid interest on any Bond that is exchanged for an Exchange Bond or a Private Exchange NotesBond pursuant to this Agreement shall be paid on or before the first interest payment date on the Exchange Bonds and the Private Exchange Bonds, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. .
(h) The Exchange Offer Bonds and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case Bonds may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and event shall provide that the Exchange Notes Bonds shall not be subject to the transfer restrictions set forth in the Indenture, except in any case where an Exchange Bond constitutes a Transfer Restricted Security. The Indenture or such indenture shall provide that the Exchange NotesBonds, the Private Exchange Notes Bonds and the Notes Bonds shall vote and consent together on all matters as one class and that none of neither the Exchange NotesBonds, the Private Exchange Notes or Bonds nor the Notes Bonds will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Panda Interfunding Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts The Issuer agrees to file with the SECSEC as soon as practicable after the Closing Date, but in no event later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “"Exchange Notes”"), guaranteed on a senior basis by the Guarantors, that are which Exchange Notes will be (i) substantially identical in all material respects to the New Notes, except that (i) the such Exchange Notes shall will not contain no restrictive legend thereon and terms with respect to transfer restrictions, registration rights or the obligation to pay any Added Interest, (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC or to effect or maintain the qualification thereof under the TIA) ), and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA, and (iii) registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer shall will be registered pursuant to the Securities Act on an appropriate form of Registration Statement (the "Exchange Offer Registration Statement"), and will comply with all applicable tender offer rules and regulations under promulgated pursuant to the Exchange Act and other shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws. The Issuers Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law, policy or interpretation of the staff of the SEC. No securities shall be included in the Exchange Offer Registration Statement other than the Exchange Notes. The Issuer agrees to (x) use commercially reasonable its best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before prior to the Effectiveness Date; Target Date and to cause the Exchange Offer to be consummated on or prior to the Exchange Offer Completion Date and (y) keep the Exchange Offer open for at least not less than 30 days (or such longer if period required by applicable law) ), after the date that the notice of the Exchange Offer referred to below is mailed to Holders; and .
(zb) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which representation may be contained in the applicable letter of transmittaltransmittal contemplated by the Exchange Offer Registration Statement) that: that (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder noris not engaged in, and does not intend to the actual knowledge of such Holderengage in, any other Person receiving Exchange Notes from such Holder and has an no arrangement or understanding with any Person person to participate in in, the “distribution” distribution of the Exchange Notes, and (within iii) such Holder is not (1) an "affiliate" of the meaning Issuer (an "Issuer Affiliate") or, (2) the Placement Agent or any other broker-dealer that acquired such Transfer Restricted Securities directly from the Issuer or any Issuer Affiliate for resale pursuant to Rule 144A, Regulation S or another available exemption from the registration requirements of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; Act (iii) neither the Holder nora "Direct Broker-Dealer Buyer"). As used herein, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “"affiliate” (" shall be as defined in Rule 405) 405 under the Securities Act. Each Holder hereby acknowledges and agrees that any Issuer Affiliate, any Direct Broker-Dealer Buyer, and any such Holder intending to use the Exchange Offer to participate in a distribution of the Company orsecurities to be acquired in the Exchange Offer (i) could not under SEC policy as in effect on the date of this Agreement participate in the Exchange Offer, if it is an affiliate of the Company, it will and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable in connection with a secondary resale transaction and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither that such Holder nor, to the actual knowledge a secondary resale transaction of such Holder's New Notes should be covered by an effective registration statement containing the selling security holder and other information required by Item 507 and 508, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution as applicable, of the Exchange Notes; and (v) if such Holder is a Participating BrokerRegulation S-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 K under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use commercially its reasonable best efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior subordinated basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, Senior Subordinated Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Senior Subordinated Notes or or, if no such interest has been paid, from the Issue Date, Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (zy) consummate the Exchange Offer on or prior to the 360th 315th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities and the Senior Notes (and the related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of (i) the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”)) and (ii) whether, whether to the Issuer’s knowledge, such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Senior Subordinated Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Senior Subordinated Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Senior Subordinated Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Senior Subordinated Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Senior Subordinated Notes of such Holder so accepted for exchange; provided that, in the case of any Senior Subordinated Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Senior Subordinated Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange, as the case may be. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Senior Subordinated Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Subordinated Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 315 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuer at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. In lieu of its obligations under Section 2(a), -------------- the Company and the Trust have the option to (ai) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts cause to file be filed with the SEC, no later than SEC within 150 days after the Filing Date, a Registration Statement (the “Issue Date an Exchange Offer Registration Statement”) Statement on an appropriate registration form with respect to a registered offer (under the “Securities Act covering the Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable their best efforts to cause the such Exchange Offer Registration Statement to be declared effective under the Securities Act on or before by the Effectiveness SEC not later than the date which is 180 days after the Issue Date; , and (yiii) keep the such Exchange Offer open Registration Statement effective for at least not less than 30 calendar days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to the Holders; . In addition, in the event that the Company has filed a Shelf Registration Statement in accordance with the provisions of Section 2(a) in lieu of conducting an Exchange Offer in accordance with the foregoing sentence, the Company may, if permitted in accordance with then applicable regulations and the then current interpretations of the staff of the Commission, elect to conduct an Exchange Offer in accordance with the terms set forth herein, other than with respect to the specific timing requirements set forth in the foregoing sentence. In the event the Company consummates an Exchange Offer subsequent to the filing and effectiveness of a Shelf Registration Statement, the Company's obligations to maintain such a Shelf Registration shall terminate except for Private Exchange Securities (z) consummate as defined below). Upon the effectiveness of the Exchange Offer on or prior to Registration Statement, the 360th day following Company and the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in Trust shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer will be required to represent enable each Holder eligible and electing to exchange Registrable Securities for a like principal amount of Exchange Debentures or a like liquidation amount of Exchange Capital Securities, together with the Issuers in writing Exchange Guarantee, as applicable (which may be contained in the applicable letter of transmittal) that: assuming that such Holder (i) any is not an affiliate of the Company or the Trust within the meaning of Rule 405 under the Securities Act, (ii) is not a broker-dealer tendering Registrable Securities acquired directly from the Company for its own account, (iii) acquires the Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired Securities in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder's business, any other Person receiving Exchange Notes from such Holder and (iv) has an arrangement no arrangements or understanding understandings with any Person to participate in the “distribution” (within Exchange Offer for the meaning purpose of the Securities Act) of distributing the Exchange Notes in violation of the provisions of the Securities) to transfer such Exchange Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, from and after their receipt without any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of limitations or restrictions under the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in under state securities or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureaublue sky laws. In connection with the Exchange Offer, the Issuers Company and the Trust shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) use commercially reasonable efforts to keep the Exchange Offer open for acceptance for a period of not less than 30 days after the date that notice of the Exchange Offer thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the "Exchange Period");; ---------------
(3iii) utilize the services of a depositary the Depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer;
(4iv) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which of the Exchange Period, by sending to the institution specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange, and a statement that such Holder is withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer remains openwill remain outstanding and continue to accrue interest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchaser and Participating Broker-Dealers as provided herein); and
(5vi) otherwise comply in all material respects with all applicable lawslaws relating to the Exchange Offer. If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to participate in the Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment in the initial distribution as soon as practicable upon receipt by the Company and the Trust of a written request from the Initial Purchaser, rules the Company and regulationsthe Trust, as applicable, shall issue and deliver to such Initial Purchaser in exchange (the "Private Exchange") for the Securities held by the ---------------- Initial Purchaser, a like liquidation amount of Capital Securities of the Trust, together with the Exchange Guarantee, or a like principal amount of the Subordinated Debentures of the Company, as applicable, that are identical (except that such securities may bear a customary legend with respect to restrictions on transfer pursuant to the Securities Act) to the Exchange Securities (the "Private Exchange Securities") and which are issued pursuant to --------------------------- the Indenture, the Declaration or the Guarantee (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable, and that the Exchange Securities, the Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that neither the Exchange Securities, the Private Exchange Securities nor the Securities will have the right to vote or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as the Exchange Securities and the Company and the Trust will seek to cause the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange Securities as for the Exchange Securities issued pursuant to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and and, if applicable, the Private Exchange, if anythe Company and the Trust, as the Issuers case requires, shall:
(1i) accept for exchange all Registrable Notes validly Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2ii) deliver deliver, or cause to be delivered, to the applicable Trustee for cancellation all Registrable Notes Securities or portions thereof so accepted for exchangeexchange by the Company; and
(3iii) issue, and cause the applicable Trustee under the Indenture, the Declaration or the Guarantee, as applicable, to promptly authenticate and deliver promptly to each Holder of NotesHolder, new Exchange Notes Securities or Private Exchange NotesSecurities, as the case may beapplicable, equal in principal amount to the Notes principal amount of the Subordinated Debentures or equal in liquidation amount to the liquidation amount to the Capital Securities (together with the guarantee thereof) as are surrendered by such Holder so accepted for exchange; provided that, Holder. Distributions on each Exchange Capital Security and interest on each Exchange Debenture and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the case Private Exchange will accrue from the last date on which a Distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefore or, if no Distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of any Notes held in global form by a depositarythe staff of the SEC, authentication the Company and delivery the Trust shall use their best efforts to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for complete the account of such Holders in accordance Exchange Offer, if commenced, as provided above, and shall comply with the Indenture shall satisfy such authentication applicable requirements of the Securities Act, the Exchange Act and delivery requirementother applicable laws in connection with the Exchange Offer. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) that the Exchange Offer or Private Exchange, as the case may be, making of any exchange by a Holder does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) due tendering of the Registrable Securities in accordance with the Exchange Offer; (iii) that each Holder of Registrable Securities to be exchanged in the Exchange Offer shall make the customary representations set forth in the next sentence of this paragraph and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency which might materially with respect to the Exchange Offer which, in the Company's judgment, could reasonably be expected to impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred Offer. Each Holder of Registrable Securities who wishes to exchange such Registrable Securities for Exchange Securities in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and will be required to make certain customary representations in connection therewith, including, in the Private Exchange Notes shall be issued under case of any Holder of Capital Securities, representations that (i) the Indenture or (ii) it is not an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none affiliate of the Exchange Notes, the Private Exchange Notes Trust or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange OfferCompany, (ii) the Exchange Offer is not consummated within 360 days Securities to be received by it were acquired in the ordinary course of the Issue Dateits business, (iii) any Holder so requests in writing to at the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on it has no arrangement with any person to participate in the date of the exchange that may be sold without restriction under the Securities Act distribution (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) of the Exchange Capital Securities and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) such other representations as may be reasonably necessary under applicable rules and regulations to render the use of Form S-4 or other appropriate form under the Securities Act available. The Company and the Trust shall inform the Initial Purchaser, after consultation with the Trustee, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchaser shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Section 2(b), the provisions of this sentenceAgreement shall continue to apply, then the Issuers shall promptly deliver mutatis ------- mutandis, solely with respect to the Holders Registrable Securities that are Private -------- Exchange Securities and Exchange Securities held by Participating Broker-Dealers, and the Trustee written notice thereof Company and the Trust shall have no further obligation to register the Registrable Securities (the “Shelf Notice”other than Private Exchange Securities) and shall file a Shelf Registration pursuant to Section 3 hereof2(a) of this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Investors Financial Services Corp)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the The Issuers shall use commercially reasonable efforts agree to file with the SECCommission, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered an offer to exchange (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (including, without limitation, the guarantee provisions thereof) (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is first mailed to the Holders; and (z) consummate the Exchange Offer on or prior to the 360th 30th day following the Issue Datedate on which the Exchange Registration Statement is declared effective. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective, for purposes of this Agreement, during the period of interference, until the Exchange Offer and issuance resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (distribution of the Exchange Notes, that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act) , and any additional representations that in the opinion of counsel to the Issuers are necessary under then existing interpretations of the Commission in order for the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information Registration Statement to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesdeclared effective. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, if any, and the Company Issuers shall have no further fur- ther obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section section, entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersHolders, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC Commission with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC Commission or such positions or policies policies, in the judgment of the Holders, represent the prevailing views of the staff of the SECCommission. Such “"Plan of Distribution” " section shall also expressly permitallow, to the extent permitted by applicable policies and regulations of the SECCommission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SECso permitted, all Participating Broker-Dealers, and shall include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons Persons, subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary beginning when the Exchange Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Exchange Offer has been completed, and such Persons are no longer required to comply with applicable law the prospectus delivery requirements in connection with any resale offers and sales of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “"Applicable Period”"). If, prior to upon consummation of the Exchange Offer, the Initial Purchasers hold any Holder holds any Notes acquired by them that have it and having the status of an unsold allotment in the initial distributiondistribution and, as a result, such Holder does not receive Exchange Notes on the date of exchange that may be sold without restriction under the federal securities laws, the Issuers, upon the request of the Initial Purchaserssuch Holder, shall shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchaserssuch Holder, in exchange (the “"Private Exchange”") for such the Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes Notes, except for the placement existence of a restrictive legend restrictions on such transfer thereof under the Securities Act and securities laws of the several states of the United States of America (the "Private Exchange Notes. The Private Exchange Notes shall be ") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if permitted by no interest has been paid on the CUSIP Service BureauNotes, from the Issue Date. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Imperial Group Holding Corp.-1)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the The Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date“Exchange Notes”), and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. Interest on each Exchange Note will accrue (A) from the later of (1) the last interest payment date on which interest was paid on the Note surrendered, or (2) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, such interest payment date or (B) if no interest has been paid on that Note, from the Issue Date. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least acceptance for not less than 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior before April 13, 2006. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes (and related guarantees) thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to the 360th day following the Issue Datehave become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i1) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being (and related guarantees) to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii2) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes (and related guarantees) in violation of the provisions of the Securities Act; , (iii3) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405405 promulgated under the Securities Act) of any Issuer (4) if the Company orholder is not a broker-dealer, if that it is an affiliate not engaged in, and does not intend to engage in, the distribution of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (and related guarantees) and (v5) if such Holder the holder is a broker-dealer (a “Participating Broker-Dealer, such Holder has ”) that it will receive the Exchange Notes (and related guarantees) for its own account in exchange for Securities that were acquired the Registrable Notes as a result of market-making activities or other trading activities activities, and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesNotes (and related guarantees). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and related guarantees), Exchange Notes (and related guarantees) as to which Section 2(c)(iv) is applicable and Exchange Notes (and related guarantees) held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and related guarantees) and other than in respect of any Exchange Notes (and related guarantees) as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes (and related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes Statement; provided, however that if the Company issues under the Indenture additional 5.125% Senior Notes due 2010 (and related guarantees issuable guarantees) that are identical in respect of all material respects to the Notes and have the same CUSIP number as the Notes (“Additional Notes”), the Company may include in the Exchange Offer Registration Statement a like aggregate principal amount of notes of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Additional Notes, except that such notes shall contain no restrictive legend thereon.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerParticipating Broker-dealer Dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerParticipating Broker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”)Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; provided, however, that such period shall not be required to exceed 90 180 days after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes Holder holds any Registrable Securities acquired by them it that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or any Holder is not entitled to participate in the IssuersExchange Offer, the Issuers upon the request of the Initial Purchasers, any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”) for such Notes Registrable Securities held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Issuers and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts Guarantors agree to file with the SECSEC as soon as practicable after the Closing Date, but in no event later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company (Issuers and the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that Guarantors which are substantially identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue identity of the Guarantors may be different from the last date on which interest was paid on Guarantors that initially guaranteed the Notes or if no such interest has been paid, from Securities pursuant to the Issue Date, Indenture so long as the Securities are at all times guaranteed in compliance with the Indenture (the "Exchange Securities") (and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer shall will be registered pursuant to the Securities Act on an appropriate form (the "Exchange Registration Statement") and will comply with all applicable tender offer rules and regulations under promulgated pursuant to the Exchange Act and other shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws. The Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law or interpretation of the staff of the SEC. No securities shall be included in the Registration Statement covering the Exchange Offer other than the Exchange Securities. The Issuers shall and the Guarantors agree to use their best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under pursuant to the Securities Act on or before the Effectiveness Target Date; (y) keep the Exchange Offer open for at least 30 not less than 20 business days (or such longer if period required by applicable law) after the date that notice commencement of the Exchange Offer is mailed to HoldersOffer; and (z) consummate the Exchange Offer on within 45 days after the earlier of the effectiveness thereof or prior to the 360th day following the Issue Effectiveness Target Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (distribution of the Exchange Securities, and that such Holder is not an affiliate of the Issuers within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions Rule 405 of the Securities Act; Act (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, or that if it is such an affiliate of the Companyaffiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable applicable). Each Holder that is not a Participating Broker-Dealer will be required to represent that it is not engaged in, and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends does not intend to engage in a in, the distribution of the Exchange Notes; and Securities. Each Holder that is (vi) if such Holder is a Participating Broker-Dealer, such Holder has Dealer and (ii) will receive Exchange Notes for its own account in exchange for the Transfer Restricted Securities that it acquired as the Registrable Notes as a result of market-market making activities or other trading activities and will be re- quired to acknowledge that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) deliver a Prospectus as required by law in connection with any resale of the such Exchange NotesSecurities. Upon consummation of the Exchange Offer in accordance with this Section 2Agreement, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, Issuers and the Company Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) Transfer Restricted Securities pursuant to Section 2(c) and Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably " acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActSecurities. The Issuers and the Guarantors shall use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons persons subject to the prospectus delivery requirements of the Securities Act Act, for such a period of time as is necessary to comply with applicable law in connection with any resale 180 days after consummation of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days Offer (or such longer period if extended pursuant to the last paragraph of Section 5 hereof 5) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Sun International North America Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Securities shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 390th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and to the extent a Shelf Notice is delivered pursuant to Section 2(c) hereof, will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the any prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by the Market-Maker and Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 13d‑3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Company deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 390 days of the Issue Date, (iii) any Holder Initial Purchaser or holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Company and the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts Guarantors agree to file with the SECCommission as soon as practicable after the Closing Date, but in no event later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”"EXCHANGE OFFER") on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company Company, the terms of which are substantially identical to the Notes (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that "EXCHANGE NOTES") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) in all material respects and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act. The Exchange Offer shall will be registered under the Securities Act on the appropriate form (the "EXCHANGE OFFER REGISTRATION STATEMENT") and will comply with all applicable tender offer rules and regulations under the Exchange Act Act. Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company and other applicable laws. The Issuers shall the Guarantors will commence the Exchange Offer and use their respective best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be become declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer issue, on or prior to the 360th later of (1) the 30th business day following the Issue Datedate on which the Exchange Offer Registration Statement was declared effective by the Commission, and (2) the earliest possible date following such 30th business day if a longer period is required by federal securities laws (such later date being the "EXCHANGE DEADLINE"), Exchange Notes in exchange for all Notes tendered prior thereto in the Exchange Offer. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation Notes, and that such Holder is not an affiliate of the provisions Company within the meaning of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Transfer Restricted Securities that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and neither the Company nor the Guarantors shall have no any further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof appliesNotes) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial PurchasersRepresentative, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC Commission with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 1 3d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER"), whether such positions or policies have been publicly disseminated by the staff Staff of the SEC Commission or such positions or policies policies, in the judgment of the Representative, represent the prevailing views of the staff Staff of the SECCommission. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Company and the Guarantors shall use commercially reasonable their respective best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, PROVIDED that such period shall not be required to exceed 90 days (or such longer period if extended pursuant to the last paragraph of Section 5 hereof 5) (the “Applicable Period”"APPLICABLE PERIOD"). If, prior to the commencement or consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have and having the status of as an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial PurchasersRepresentative, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holderthe Initial Purchasers, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes except for (the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid to the Initial Purchasers on the Notes surrendered in exchange therefor or, if permitted by no interest has been paid on the CUSIP Service BureauNotes, from the date of original issue. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Issuers shall file with the Exchange Offer would violate SEC, to the extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form (the "Exchange Offer Registration Statement") with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities (other than the Private Exchange Securities, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Securities (the "Exchange Notes" and, except together with the guarantees thereon, the "Exchange Securities") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and whichthat, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that (i) the Exchange Securities (other than Private Exchange Securities, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon, (ii) interest shall accrue from (A) the last date on which interest was paid on the Notes or (B) if no such interest has been paid, from the Issue Date and (iii) except with respect to the Exchange Notes as to which clause 2(c)(iv) applies, the Exchange Notes shall not be entitled to Additional Interest as set forth in Section 4 hereof, provided that Additional Interest attaches to the Notes. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall agree to use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days not less than 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 180th day following the Issue Date. If after such Exchange Offer Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such interference until the Exchange Offer may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither Offer, such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; , (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company or the registration and prospectus delivery requirements Guarantors within the meaning of the Securities Act to and is not acting on behalf of any Persons who could not truthfully make the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; foregoing representations, (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is engaging in or intends not a broker-dealer, that it is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; Securities, and (v) if such Holder is a Participating Brokerbroker-Dealerdealer, such Holder has that it will receive Exchange Securities for its own account in exchange for Securities that were acquired the Registrable Notes as a result of market-making activities or other trading activities and activities, that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the such Exchange NotesSecurities. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable Securities and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and other than in respect of any Exchange Notes Securities as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which that shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies,, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, including to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use commercially their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons Persons, subject to the prospectus delivery requirements of the Securities Act Act, for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”)Securities covered thereby. If, prior to consummation of the Exchange Offer, the any Initial Purchasers hold Purchaser holds any Notes Securities acquired by them it and having, or that have are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the such Initial PurchasersPurchaser, shall simultaneously with the delivery of the Exchange Notes Securities in the Exchange Offer, shall issue and deliver to the such Initial Purchasers, Purchaser in exchange (the “"Private Exchange”") for such Notes Securities held by any such Holder, Initial Purchaser a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Issuers that are identical in all material respects to the Exchange Notes Securities (the "Private Exchange Notes" and, together with the guarantees thereon, the "Private Exchange Securities") (and that are issued pursuant to the same indenture as the Exchange Securities), except for the placement of a restrictive legend on such Private Exchange NotesSecurities. The Interest on each Exchange Note and Private Exchange Notes shall Note will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Note surrendered in exchange therefor, or (ii) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be issued pursuant to paid, the same indenture as date of such interest payment date or (B) if no interest has been paid on such Note, from the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauIssue Date. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(43) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly Securities properly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes Securities or Private Exchange NotesSecurities, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer Securities and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case Securities may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification event has been qualified under the TIA or is exempt from such qualification and shall provide that (1) the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Securities shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange NotesSecurities, the Private Exchange Notes Securities and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesSecurities, the Private Exchange Notes Securities or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of the Issue DateDate (provided that if the Exchange Offer shall be consummated after such 180-day period, then the Issuers' obligation under this clause (ii) arising from the failure of the Exchange Offer to be consummated within such 180-day period shall terminate), (iii) any Holder the holder of Private Exchange Securities so requests in writing to the Company at any time within 90 days after the consummation of the Exchange Offer with respect Private Exchange, (iv) because of any changes in law or in currently prevailing interpretations of the staff of the SEC, a Holder (other than an Initial Purchaser holding Securities acquired directly from the Issuers) is not permitted to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes participate in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies ), then the Company within 30 days after such Holder first becomes aware of such restrictionsshall promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and, in the case of each of clauses (i) and (ii), to all Holders, in the case of clause (iii), to the Holders of the Private Exchange Securities, and including in the case of clause (iv) of this sentenceand (v), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) affected Holder, and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Aerojet Ordnance Tennessee Inc)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts (A) prepare and, on or prior to 60 days (the "FILING DATE") after the date of original issuance of the Notes (the "ISSUE DATE"), file with the SEC, no later than the Filing Date, SEC a Registration Statement (under the “Exchange Offer Registration Statement”) on an appropriate registration form Securities Act with respect to a registered an offer (by the “Exchange Offer”) Company to exchange any and all the holders of the Registrable Notes to issue and deliver to such holders, in exchange for Notes, a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis (B) use their best efforts to cause the Registration Statement relating to the Exchange Offer to be declared effective by the Guarantors, that are identical in all material respects SEC under the Securities Act on or prior to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from 150 days after the Issue Date, and which are entitled (C) commence the Exchange Offer and use their best efforts to issue, on or prior to the benefits Consummation Date, the Exchange Notes. The offer and sale of the Indenture or a trust indenture which is identical in all material respects Exchange Notes pursuant to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall be registered pursuant to the Securities Act on an appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and duly registered or qualified under all applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable state securities or Blue Sky laws. The Issuers Exchange Offer shall (x) use commercially reasonable efforts not be subject to cause any condition, other than that the Exchange Offer Registration Statement to be declared effective under the Securities Act on does not violate any applicable law or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (regulation or longer if required by applicable law) after the date that notice interpretation of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business staff of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesSEC. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement Issuers shall continue to apply, mutatis mutandis, solely have no further registration obligations other than with respect to Registrable Notes that are (i) Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv(ii) is applicable and Exchange Notes held by Participating Broker-Dealers, Dealers and the Company shall have no further obligation to register Registrable (iii) Notes (other than Private Exchange Notes and or Exchange Notes as to which clause 2(c)(ivSection 3(a)(iii) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional other than the Exchange Notes.
(b) The Issuers shall include within may require each holder of Notes, as a condition to its participation in the Prospectus Exchange Offer, to represent to the Issuers and their counsel in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of (i) any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer holder will be acquired in the Exchange Offer ordinary course of its business, (a “Participating Broker-Dealer”), whether ii) such positions holder will have no arrangement or policies have been publicly disseminated by understanding with any person to participate in the staff distribution (within the meaning of the SEC or such positions or policies represent the prevailing views Securities Act) of the staff Exchange Notes and (iii) such holder is not an Affiliate of an Issuer, or if it has such an arrangement or understanding or is an Affiliate of an Issuer, it will comply with the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies registration and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent applicable. If the holder is not a broker-dealer, it will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Notes. If the holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making activities or other trading activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes.
(c) If, prior to consummation of the Exchange Offer, any of the Initial Purchasers holds any Notes acquired by it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, or any other holder of Notes is not entitled to participate in the Exchange Offer, the Issuers, upon the request of any Initial Purchaser or any such holder, shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchaser and any such holder, in exchange (the "PRIVATE EXCHANGE") for such Notes held by such Initial Purchaser and any such holder, a like principal amount of debt securities of the Company, guaranteed by each of the Subsidiary Guarantors on a senior subordinated basis, that are identical in all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable policies and regulations law or interpretation of the staff of the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate accompanying documents, including appropriate letters of transmittal, to each holder of Notes providing, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Participating Broker-DealersNotes validly tendered will be accepted for exchange;
(ii) The date of acceptance for exchange (the "EXCHANGE DATE"), which date shall in no event be later than the Consummation Date (unless otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged pursuant to the Exchange Offer will be required to surrender such Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such securities pursuant to the Exchange Offer may no longer have any registration rights hereunder with respect to Notes not tendered. Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Notes or portions thereof so accepted for exchange by the Company, and include issue, cause the Trustee under the Indenture (or the indenture pursuant to which the Exchange Notes are issued) to authenticate, and mail to each holder of Notes, Exchange Notes equal in principal amount to the principal amount of the Notes surrendered by such holder.
(e) The Issuers and the Initial Purchasers acknowledge that the staff of the SEC has taken the position that any broker-dealer that owns Exchange Notes that were received by such broker-dealer for its own account in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Issuers and the Initial Purchasers also acknowledge that it is the SEC staff's position that if the Prospectus contained in the Exchange Registration Statement includes a plan of distribution containing a statement describing to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in compliance connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. The In light of the foregoing, if requested by a Participating Broker-Dealer, the Issuers shall agree (x) to use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such a period of time up to six months after the Consummation Date or such earlier date as is necessary to comply with applicable law each Participating Broker-Dealer shall have notified the Company in connection with any resale of the Exchange Notes; provided, however, writing that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of Participating Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously (y) to comply with the delivery provisions of the Exchange Notes issue and deliver to the Initial PurchasersSection 5 of this Agreement, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant they relate to the Exchange Offer and the Private ExchangeExchange Registration Statement, if any;and (z) to deliver to such Participating Broker-Dealer a "cold comfort" letter of the independent public accountants of the Issuers and a legal opinion as to matters reasonably requested by such Participating Broker-Dealer relating to the Exchange Registration Statement and the related Prospectus and any amendments or supplements thereto.
(2f) deliver The Initial Purchasers shall have no liability to the Trustee for cancellation all Registrable Notes so accepted for exchange; andany Participating Broker-Dealer with respect to any request made pursuant to Section 2(e).
(3g) cause the Trustee to authenticate and deliver promptly to Interest on each Holder of Notes, Exchange Notes Note or Private Exchange Notes, as Note will accrue (A) from the case may be, equal in principal amount to the Notes later of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer last interest payment date on which interest was paid on the Note surrendered in exchange therefor, or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no action or proceeding shall have interest has been instituted or threatened in any court or by any governmental agency which might materially impair paid on the ability of Notes, from the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and Issue Date.
(iiih) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and event shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Federal Data Corp /Fa/)
Exchange Offer. (a) Unless To the Exchange Offer would violate extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Securities (the "Exchange Notes"), except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawslaw. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 20 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 185th day following after the Issue Date. If, after the Exchange Offer Registration Statement is initially declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such interference, until the Exchange Offer may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; , (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is engaging in or intends not a broker-dealer, such Holder is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; and , (v) if such Holder is a Participating Brokerbroker-Dealer, such Holder has dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired the Registrable Notes as a result of market-making activities or other trading activities and that it activities, such Holder will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of such Exchange Notes and (vi) the Exchange NotesHolder is not acting on behalf of any persons or entities who could not truthfully make the foregoing representations. Such Holder will also be required to make such other representations as may be necessary under applicable SEC rules, regulations or interpretations to render available the use of Form S-4 or any other appropriate form under the Securities Act. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, apply solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-DealersDealers (as defined), and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) Statement. The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; Notes covered thereby, provided, however, that such period shall not be required to exceed 90 days 180 days, or such longer period if extended pursuant to the last paragraph sentence of Section 5 hereof (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial Purchasers, Purchasers shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the “"Private Exchange”") for such Notes held by any such Holderthe Initial Purchasers, a like principal amount of notes (the “"Private Exchange Notes”") of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers shall:
(1) : mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) ; use commercially reasonable their best efforts to keep the Exchange Offer open for not less than 30 20 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) ; utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) ; permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5) and otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) : accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) ; deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) and cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or the Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; , (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or the Private Exchange, (iv) there has not been any material change, or development involving a prospective material change, in the business or financial affairs of the Issuers which, in the reasonable judgment of the Issuers, would materially impair the Issuers' ability to consummate the Exchange Offer or the Private Exchange, and (v) there has not been proposed, adopted or enacted any law, statute, rule or regulation which, in the reasonable judgment of the Issuers, would materially impair the Issuers' ability to consummate the Exchange Offer or the Private Exchange or have a material adverse effect on the Issuers if the Exchange Offer or the Private Exchange was consummated. In the event that the Issuers are unable to consummate the Exchange Offer or the Private Exchange due to any event listed in clauses (i) through (v) above, the Issuers shall not be deemed to have breached any covenant under this Section 2. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 185 days of the Issue Date, (iii) any Holder the holder of Private Exchange Notes so requests in writing to the Company at any time Issuers within 60 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of one of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions), then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Marathon Power Technologies Co)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts The Company agrees to file at its sole cost and expense with the SEC, SEC no later than the Filing Date, a Registration Statement unless prohibited by applicable law or SEC policy, an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes, if any) for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that which are substantially identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the TIASEC to effect or maintain the qualification thereof under the Trust Indenture Act) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIATrust Indenture Act), except that the Exchange Notes (other than Private Exchange Notes, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Offer Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall Company agrees to (xi) use commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Target Date; (yii) keep the Exchange Offer open for at least 30 20 business days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; (iii) (A) file all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) file, if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (zC) cause all necessary filings in connection with the registration 7 5 and qualifications of the Exchange Notes to be made under the blue sky laws of such jurisdictions as are necessary to permit consummation of the Exchange Offer; and (iv) use its reasonable best efforts to consummate the Exchange Offer on or prior to 30 days after the 360th day following date on which the Issue DateExchange Offer Registration Statement is declared effective by the SEC. Upon the Exchange Offer Registration Statement being declared effective, the Company will offer the Exchange Notes in exchange for surrender of the Notes. If after such Exchange Offer Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: that (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder it has an no arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; Notes, (iii) neither it is not a broker-dealer that acquired Notes directly from the Holder norCompany, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder (iv) it is not an “"affiliate” " (as defined in Rule 405405 under the Securities Act) of the Company or, if it is such an affiliate of the Companyaffiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in (v) it is not acting on behalf of any Person who could not truthfully make the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from foregoing representations. If such Holder is engaging in or intends not a broker-dealer, such Holder will be required to represent that it is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; and (v) if . If such Holder is a Participating Brokerbroker-Dealer, such Holder has dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired the Registrable Notes as a result of market-making activities or other trading activities and activities, it will be required to acknowledge that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the such Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise", reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff Staff of the SEC or such positions or policies policies, in the judgment of the Initial Purchaser, represent the prevailing views of the staff Staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, permit the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-DealersDealers (unless such Participating Broker-Dealer will be reselling an unsold allotment from the original sale of the Notes), and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Versatel Telecom Bv)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers shall and the Guarantors shall, at their sole expense, use their respective commercially reasonable efforts to prepare and file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the Company same series of the Issuers (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a senior unsecured basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Issuers and the Guarantors shall use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective. Upon an Exchange Offer Registration Statement being declared effective, the Issuers and the Guarantors shall commence the Exchange Offer. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable federal and state securities laws. The Issuers and the Guarantors shall (x) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (yx) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (zy) consummate the Exchange Offer on or prior to the 360th 450th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Transfer Restricted Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder Holder, has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of either the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofIssuer or any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder Holder, is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Transfer Restricted Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) ). In addition, all Holders of Transfer Restricted Securities shall otherwise cooperate in connection with any resale of the Company’s and the Issuers’ preparations for the Exchange NotesOffer. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Transfer Restricted Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuers and the Guarantors shall have no further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Each of the Issuers and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the written request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers and the Guarantors shall:
(1) mailsend, or cause to be mailedsent, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed sent to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers and the Guarantors shall:
(1) accept for exchange all Registrable Notes Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Transfer Restricted Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) that the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) that no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which which, in the Company’s judgment, might materially impair the ability of the Issuers and the Guarantors to proceed with the Exchange Offer or the Private Exchange, and and, in the Company’s judgment, no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuers and the Guarantors; and (iii) that all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the accuracy of customary representations of the Holders and other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations, the satisfaction by the Holders of customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of by the 450th day following the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Hilton Worldwide Holdings Inc.)
Exchange Offer. (a) Unless the Company determines in good faith that the Exchange Offer would violate shall not be permissible under applicable law or any applicable interpretation of the staff of the SECCommission policy, the Issuers Company shall use commercially reasonable efforts prepare and cause to file be filed with the SECCommission as soon as reasonably practicable after the Closing Date, no later than the Filing Datesubject to Sections 2(b) and 2(c) of this Agreement, a Registration Statement (the “an "Exchange Offer Registration --------------------------- Statement”") on for an appropriate registration form with respect offer to a registered offer exchange (the “an "Exchange Offer”") to exchange any and all of the Registrable Notes --------- -------------- (subject to Section 2(c)) for a like aggregate principal amount of debt securities of the Company in all material respects substantially identical to the Initial Notes (the “"Exchange Notes”)") (and which are entitled to the benefits -------------- of the Indenture, guaranteed on which shall be qualified under the TIA in connection with such registration, or a senior basis by the Guarantors, that are trust indenture which is substantially identical in all material respects to the NotesIndenture), except that other than (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such substantially identical trust indenture as are the Trustee and the Company may deem necessary in connection with the Trustee's rights and duties or to comply with any requirements of the TIA) and which, in either case, conforms Commission to effect or maintain the requirements necessary for qualification thereof under the TIATIA and (ii) such changes relating to restrictions on transfer set forth in the Indenture. The Exchange Offer shall be registered under the Securities Act on the appropriate form of Registration Statement and shall comply with all applicable tender offer rules and regulations under the Exchange Act and with all other applicable laws. Subject to the terms and limitations of Section 2(c), such Exchange Offer Registration Statement may also cover any resales of Exchange Notes by any Restricted Person, in the manner or manners designated by them which, in any event, is reasonably acceptable to the Company. The Issuers Company shall (x) use commercially its reasonable best efforts to (i) cause the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before prior to the Effectiveness Effective Date; , (yii) keep the Exchange Offer open for at least a period of not less than the shorter of (A) the period ending when the last remaining Initial Note is tendered into the Exchange Offer and (B) 30 days (or longer if required by applicable law) after from the date notice is mailed to the holders of Initial Notes (provided that notice in no -------- event shall such period be less than the period required under applicable Federal and state securities laws), and (iii) maintain such Exchange Offer Registration Statement continuously effective for a period (the "Exchange -------- Period") of not less than the longer of (A) the period until the consummation of ------ the Exchange Offer and (B) 120 days after effectiveness of the Exchange Offer is mailed Registration Statement, provided however, that in the event that all resales of -------- ------- Exchange Notes (including, subject to Holders; the time periods set forth herein, any Resale Notes and (zincluding, subject to the time periods set forth herein, any resales by broker-dealers that receive Exchange Notes for their own account pursuant to the Exchange Offer) consummate covered by such Exchange Offer Registration Statement have been made, the Exchange Offer on or Registration Statement need not remain continuously effective for the period set forth in clause (B) above. Upon consummation of the Exchange Offer, the Company shall deliver to the Trustee under the Indenture for cancellation all Initial Notes tendered by the holders thereof pursuant to the Exchange Offer and not withdrawn prior to the 360th day following date of consummation of the Issue DateExchange Offer. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates Restricted Person shall notify the Company promptly after reselling all Resale Notes held by such Restricted Person which are covered by any such Registration Statement. Each holder of Registrable Notes to be exchanged in the Exchange Offer will (other than any Restricted Person) shall be required as a condition to participating in the Exchange Offer to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: that (i) it is not an Affiliate of the Company, (ii) any Exchange Notes acquired in exchange for Registrable Notes tendered are being to be received by it shall be acquired in the ordinary course of its business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; and (iiiii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an it shall have no arrangement or understanding with any Person person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the an Exchange Offer in accordance with this Section 2 and compliance with the other provisions of this Section 2, the provisions of this Agreement shall continue Company shall, subject to applySections 2(b) and 2(c), mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities 3(a) of this Agreement; provided that the other than the Exchange Notes provisions of this -------- Agreement shall be included continue to apply as set forth in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notessuch provisions.
(b) The Issuers shall include within In the Prospectus contained event that the Company reasonably determines in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than good faith that (i) the Exchange Offer or Private ExchangeNotes would not, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened upon receipt in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, by any holder of Registrable Notes (other than any Restricted Person and no material adverse development shall have occurred in other than any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer holder who is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for acquiring such Exchange Notes in the Exchange Offer (ordinary course of business or who has an arrangement with any person to participate in the case distribution of Private such Exchange Notes), were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold tradeable by each holder thereof without restriction under the Securities Act and the Exchange Act and without restriction under applicable blue sky or state securities laws, (other than due solely ii) after conferring with counsel, the Commission is unlikely to permit the Exchange Offer Registration Statement to become effective prior to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, Effective Date (except in the case of each of clauses circumstances set forth in Section 2(c)) or (iiii) to and including (iv) of this sentencethe Exchange Offer may not be made in compliance with applicable laws, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") to the holders of the Registrable ------------ Notes and the Trustee and shall thereafter file an Initial Shelf Registration Statement pursuant to, and otherwise comply with, the provisions of Section 3(a). Following the delivery of a Shelf Notice in accordance with this Section 2(b) and compliance with Section 3(a), the Company shall file not have any further obligation under this Section 2.
(c) otherwise remain in full force and effect with respect to Registrable Notes held by any person other than a Shelf Registration pursuant to Section 3 hereofRestricted Person.
Appears in 1 contract
Samples: Registration Rights Agreement (Edison Mission Energy)
Exchange Offer. (a) Unless The Issuers shall file with the Exchange Offer would violate SEC, to the extent not prohibited by any applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, SEC no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form (the "Exchange Offer Registration Statement") with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes Securities (other than the Private Exchange Securities, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Securities ( the "Exchange Notes" and, except together with the guarantees thereon, the "Exchange Securities") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and whichthat, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Securities (other than Private Exchange Securities, if any) shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Issuers shall agree to use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least not less than 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 240th day following the Issue Date. If after such Exchange Offer Registration Statement is declared effective by the SEC, the Exchange Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement during the period of such interference until the Exchange Offer may legally resume. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; , (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company or the registration and prospectus delivery requirements Guarantors within the meaning of the Securities Act to and is not acting on behalf of any persons or entities who could not truthfully make the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; foregoing representations, (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is engaging in or intends not a broker-dealer, that is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; Securities, and (v) if such Holder is a Participating Brokerbroker-Dealer, such Holder has acquired the Registrable Notes dealer that will receive Exchange Securities for its own account in exchange for Securities that were acquires as a result of market-making activities or other trading activities and activities, that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the such Exchange NotesSecurities. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable Securities and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and other than in respect of any Exchange Notes Securities as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which that shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, including to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use commercially their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”)Securities covered thereby. If, prior to consummation of the Exchange Offer, the any Initial Purchasers hold Purchaser holds any Notes Securities acquired by them it and having, or that have are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the such Initial Purchasers, shall Purchaser simultaneously with the delivery of the Exchange Notes Securities in the Exchange Offer, shall issue and deliver to the such Initial Purchasers, Purchaser in exchange (the “"Private Exchange”") for such Notes Securities held by any such Holder, Initial Purchaser a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Issuers that are identical in all material respects to the Exchange Notes Securities (the "Private Exchange Notes" and, together with the guarantees thereon, the "Private Exchange Securities") (and that are issued pursuant to the same indenture as the Exchange Securities), except for the placement of a restrictive legend on such Private Exchange NotesSecurities. The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes Securities. Interest on each Exchange Note will accrue (A) from the later of (i) the last interest payment date on which interest was paid on the Note surrendered in exchange therefor, or (ii) if permitted by the CUSIP Service BureauNote is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on such Note, from the Issue Date. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(43) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly Securities properly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes Securities or Private Exchange NotesSecurities, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer Securities and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case Securities may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification event has been qualified under the TIA or is exempt from such qualification and shall provide that (1) the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Securities shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange NotesSecurities, the Private Exchange Notes Securities and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange NotesSecurities, the Private Exchange Notes Securities or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff Staff of the SEC, the Issuers are not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 240 days of the Issue DateDate (provided that if the Exchange Offer shall be consummated after such 240-day period, then the Issuers' obligation under this clause (ii) arising from the failure of the Exchange Offer to be consummated within such 240-day period shall terminate), (iii) any Holder the holder of Private Exchange Securities so requests in writing to the Company at any time within 90 days after the consummation of the Exchange Offer with respect Private Exchange, (iv) because of any changes in law or in currently prevailing interpretations of the staff of the SEC, a Holder (other than an Initial Purchaser holding Securities acquired directly from the Issuers) is not permitted to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes participate in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any of the Guarantors within the meaning of the Securities Act), then the Company shall promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and in the case of clauses (i), (ii) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions(iv), all Holders, in the case of each of clauses clause (i) to and including (iv) of this sentenceiii), then the Issuers shall promptly deliver to the Holders of the Private Exchange Securities and in the Trustee written notice thereof case of clause (v), the “Shelf Notice”) affected Holder, and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Town Sports International Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers The Issuer shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”), guaranteed on a senior basis by the GuarantorsIssuer, that are identical in all material respects to the Notes, except that (i) the Exchange Notes notes to be received by a Holder in such exchange shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date“Exchange Notes”), and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. Interest on each Exchange Note will accrue (A) from the later of (1) the last interest payment date on which interest was paid on the Note surrendered, or (2) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, such interest payment date or (B) if no interest has been paid on that Note, from the Issue Date. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least acceptance for not less than 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to May 29, 2004. If, after the 360th day following Exchange Offer Registration Statement is initially declared effective by the Issue DateSEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i1) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii2) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; , (iii3) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405405 promulgated under the Securities Act) of the Company orIssuer (4) if the holder is not a broker-dealer, if that it is an affiliate not engaged in, and does not intend to engage in, the distribution of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v5) if such Holder the holder is a broker-dealer (a “Participating Broker-Dealer, such Holder has ”) that it will receive Exchange Notes for its own account in exchange for Notes that were acquired the Registrable Notes as a result of market-making activities or other trading activities activities, and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes (and other notes of the Issuer that are identical in all material respects to the Notes except that such other notes do not contain a restrictive legend thereon (“Other Exchange Notes”)) shall be included in the Exchange Offer Registration Statement. Notwithstanding the foregoing, the Issuer shall (to the extent permitted by the Other Registration Rights Agreements or any similar registration rights agreement) include in the Exchange Offer Registration Statement any Other Exchange Notes to be offered in exchange for either Other Notes or any other then outstanding privately placed 7.25% Senior Subordinated Notes due 2013 pursuant to the Other Registration Rights Agreements or any similar registration rights agreement. If the Issuer is not permitted by the Other Registration Rights Agreements or any similar registration rights agreement, to include these other exchange notes in the Exchange Offer Registration Statement, the Issuer, (1) shall, in all material respects, treat the Exchange Offer Registration Statement in the same manner as any other registration statement filed by the Issuer pursuant to the Other Registration Rights Agreements or any similar registration rights agreements, including but not limited to the following: (i) the timing of all filings; (ii) the disclosure contained therein; (iii) the content of any amendments or supplements thereto; (iv) the timing of effectiveness thereof; and related guarantees issuable in respect (v) maintaining effectiveness thereof and (2) the Other Exchange Notes covered by any other registration statement filed by the Issuer pursuant to (1) above shall be offered as part of Additional Notesthe Exchange Offer.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerParticipating Broker-dealer Dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerParticipating Broker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”)Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Issuer shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; provided, however, that such period shall not be required to exceed 90 180 days after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Holder holds any Notes acquired by them it that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or any Holder is not entitled to participate in the IssuersExchange Offer, the Issuer upon the request of the Initial Purchasers, any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, Issuer that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers Issuer shall:
(1i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) use commercially reasonable its best efforts to keep the Exchange Offer open for acceptance for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4iv) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Issuer shall:
(1vi) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2vii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3viii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Dateby May 29, 2004, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesIssuer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates tenders Notes in response to the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions), then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and at its sole expense and as promptly as practicable shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially their reasonable best efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company IMCO (the “Exchange Notes”), guaranteed on a an unsecured senior basis by the Guarantors, that are have terms substantially identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior subordinated basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (w) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (x) use commercially their reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; Act, (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: :
(i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; ;
(ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; ;
(iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuers or, if it is an affiliate of the CompanyIssuers, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Registrable Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; ;
(iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and and
(v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by the Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuers at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (KLIF Broadcasting, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed guaranteed, on a senior the same basis as the Guarantees, by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Notes shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day 5th Business Day following the Issue Dateexpiration of the Exchange Offer. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities and the Notes (and the related guarantees) shall be included in the Exchange Offer Registration Statement, except that if any additional notes (as defined in the Indenture) are issued which require the Company to consummate a substantially similar exchange offer similar to the Exchange Offer, the Company may include such additional notes on the same Exchange Offer Registration Statement or and effect such exchange notes and related guarantees issuable in respect of Additional Notes.offers at the same time pursuant to the same documentation
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days days, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable Within five Business Days after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Company deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days five Business Days of the Issue Dateexpiration of the Exchange Offer, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof. The earliest date on which the Company may be required to deliver a Shelf Notice is 300 days after the Issue Date.
Appears in 1 contract
Samples: Registration Rights Agreement (Euramax International, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers Company and the Guarantors shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a senior unsecured basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Each of the Company and the Guarantors shall (x) use its commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 330th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates ), as a condition to participate in the Exchange Offer Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is not a Participating Broker-Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Securities; (vi) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesSecurities; and (vii) such Holder is not acting on behalf of any Person who could not truthfully make the foregoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and Exchange Notes Securities as to which clause Section 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to upon consummation of the Exchange Offer, the Initial Purchasers hold any Notes Securities acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes Securities issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange NotesSecurities”) of the Company, unconditionally guaranteed by the GuarantorsGuarantors on a senior unsecured basis, that are identical in all material respects to the Exchange Notes Securities except for the placement existence of a restrictive legend restrictions on such Private Exchange Notestransfer thereof under the Securities Act and securities laws of the several states of the United States. The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes Securities and bear the same CUSIP number as the Exchange Notes Securities if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The the City of New York;
(4) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesRegistrable Securities, Exchange Notes Securities or Private Exchange NotesSecurities, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 330 days of the Issue Date, (iii) any Holder of Private Exchange Securities so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, with respect to any Notes that on the Registration Trigger Date are Registrable Notes, the Issuers shall use their respective commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company Company, that are identical in all material respects to the Notes (the “Exchange Notes”), guaranteed on a an unsecured senior subordinated basis by the Guarantors, that are identical in all material respects to the Notes, Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and shall not contain the provisions relating to Additional Interest and (ii) interest thereon shall accrue from (A) the later of (x) the last date on which interest was paid on the Registrable Notes or (y) if the Registrable Note is surrendered for exchange on a date that is after the record date for an interest payment that will occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date, or (B), if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use their respective commercially reasonable efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day 30th Business Day following the Issue Dateeffectiveness of the Exchange Offer Registration Statement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) and (vi) such Holder is not acting on behalf of any Person who could not truthfully make the foregoing representations. Any Holder that fails to make the foregoing representation will not be entitled to the benefits of Additional Interest on the Notes as set forth in connection with any resale of the Exchange NotesSection 4 hereof. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes (and related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use their respective commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall terminate on the date on which a Participating Broker-Dealer is no longer required to deliver such Prospectus in connection with market-making or trading activities and in any event shall not be required to exceed 90 180 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial Purchasers, Purchasers shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, Guarantors that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauBureau and all other applicable laws, rules and regulations. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture Indenture, with such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA, and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) IfIf (A) Registrable Notes are then outstanding and (B), (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of on or prior to the Issue 35th Business Day following the Registration Trigger Date, (iii) the Initial Purchasers (if they hold Private Exchange Notes) or any Holder other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than (x) due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities ActAct or (y) such Holder’s inability to make the representations set forth in Section 2(a) hereof) and so notifies the Company in writing within 30 days after such Holder first becomes aware of such restrictionsdays, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use commercially its reasonable best efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, ) that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 285th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause Section 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Company shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially its reasonable best efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that (1) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, If (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 285 days of the Issue DateDate (provided that if the Exchange Offer shall be consummated after such 285-day period, then the Company’s obligation under this clause (ii) arising from the failure of the Exchange Offer to be consummated within such 285-day period shall terminate), (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware the consummation of such restrictionsthe Exchange Offer, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) to the Trustee and in the case of clauses (i) and (ii), all Holders, in the case of clause (iii), the Initial Purchasers or any other holder of Private Exchange Notes and in the case of clause (iv), the affected Holder, and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Securities (the "Exchange Notes"), except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or Securities or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall use their reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 30th business day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “"affiliate” " (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “"beneficial owner” " (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 180 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial Purchasers, Purchasers shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “"Private Exchange”") for such Notes Securities held by any such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes Securities held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes Securities shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 the earlier of (x) 30 business days from the effec- tive date of the Exchange Offer Registration Statement and (y) 225 days from the Issue Date, (iii) the Initial Purchasers or any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate not be permitted by applicable law or any applicable interpretation of the staff of the SEC, the Issuers Company shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, and which that are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Company shall (x) use its commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of commencement of the Exchange Offer is mailed to HoldersOffer; and (z) consummate the Exchange Offer on or prior to the 360th day 5th Business Day following the Issue Dateexpiration of the Exchange Offer. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes Securities as to which Section 2(c)(iv2(c) is applicable and Exchange Notes held by Participating Broker-Dealersapplicable, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes and Exchange Notes Registrable Securities as to which clause 2(c)(ivSection 2(c) hereof appliesis applicable) pursuant to Section 3 hereof. No securities other than the Exchange Securities and the Notes (and the related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days days, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailedmailed or otherwise distributed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders commenced (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close expiration of business, New York time, on the last Business Day on which the Exchange Offer remains openOffer; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if anyOffer, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anyOffer;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private ExchangeOffer, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeOffer. The Exchange Notes Securities (and the Private Exchange Notes related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days 5 Business Days of the Issue Dateexpiration of the Exchange Offer, or (iii) in the case of any Holder so requests in writing of Registrable Securities, such Holder notifies the Company prior to the Company at any time 20th Business Day after the consummation of the Exchange Offer with respect to Notes that such Holder (including Private Exchange NotesA) that were ineligible to be exchanged for Exchange Notes in is prohibited by law or currently prevailing interpretations of the Exchange Offer (or in staff of the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates SEC from participating in the Exchange Offer, such Holder does (B) may not receive resell the Exchange Notes on Securities acquired by it in the date of the exchange that may be sold without restriction under the Securities Act (other than due solely Exchange Offer to the status of public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not available for such Holder as resales, or (C) is a broker-dealer and owns outstanding Notes acquired directly from the Company or an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iviii) of this sentence, then the Issuers Company shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Great Lakes Dredge & Dock CORP)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers The Issuer shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities notes of the Company (the “Exchange Notes”), guaranteed on a senior basis by the GuarantorsIssuer, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date“Exchange Notes”), and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. Interest on each Exchange Note will accrue (A) from the later of (1) the last interest payment date on which interest was paid on the Note surrendered, or (2) if the Note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, such interest payment date or (B) if no interest has been paid on that Note, from the Issue Date. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least acceptance for not less than 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to May 29, 2004. If, after the 360th day following Exchange Offer Registration Statement is initially declared effective by the Issue DateSEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, the Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required required, as a condition to its participation in the Exchange Offer, to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i1) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii2) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; , (iii3) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405405 promulgated under the Securities Act) of the Company orIssuer (4) if the holder is not a broker-dealer, if that it is an affiliate not engaged in, and does not intend to engage in, the distribution of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v5) if such Holder the holder is a broker-dealer (a “Participating Broker-Dealer, such Holder has ”) that it will receive Exchange Notes for its own account in exchange for Notes that were acquired the Registrable Notes as a result of market-making activities or other trading activities activities, and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the deliver a prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement. Notwithstanding the foregoing, the Issuer shall include the Other Notes in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect the Prospectus contained therein pursuant to the terms of Additional Notesthe Other Registration Rights Agreement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial PurchasersPurchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any brokerParticipating Broker-dealer Dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such brokerParticipating Broker-dealer Dealer in the Exchange Offer (a “Participating Broker-Dealer”)Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Issuer shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesNotes covered thereby; provided, however, that such period shall not be required to exceed 90 180 days after such Exchange Offer Registration Statement is declared effective (or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereof) (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Holder holds any Notes acquired by them it that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or any Holder is not entitled to participate in the IssuersExchange Offer, the Issuer upon the request of the Initial Purchasers, any such Holder shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, Issuer that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers Issuer shall:
(1i) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2ii) use commercially reasonable its best efforts to keep the Exchange Offer open for acceptance for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4iv) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Issuer shall:
(1vi) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2vii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3viii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Dateby May 29, 2004, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesIssuer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates tenders Notes in response to the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions), then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and at its sole expense and as promptly as practicable shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers Company and the Guarantors shall use their respective commercially reasonable efforts to prepare and file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the applicable series of the Company (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue Date, Date and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable federal and state securities laws. The Issuers Company and the Guarantors shall (x) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (yx) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 450th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Transfer Restricted Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities ActSecurities; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of either the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofor any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Transfer Restricted Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) ). In addition, all Holders of Transfer Restricted Securities shall otherwise cooperate in connection with any resale of the Company’s preparations for the Exchange NotesOffer. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Transfer Restricted Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Transfer Restricted Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which which, in the Company’s judgment, might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and and, in the Company’s judgment, no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the accuracy of customary representations of the Holders and other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations, the satisfaction by the Holders of customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Company or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of by the 450th day following the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (APX Group Holdings, Inc.)
Exchange Offer. (a) Unless The Issuer shall, at the Exchange Offer would violate applicable law Issuer's cost (as set forth in SECTION 6 hereof), (i) file (or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, confidentially submit) a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") within 60 days after the Issue Date with the Commission on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company notes (the “"Exchange Notes”), guaranteed on a senior basis by the Guarantors, ") that are identical in all material respects to the Notes, Notes (except that (i) the Exchange Notes shall not contain no restrictive legend thereon terms with respect to transfer restrictions or Additional Interest upon a Registration Default) and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before prior to 150 days after the Effectiveness Issue Date and (iii) use its reasonable best efforts to consummate the Exchange Offer on or prior to 180 days after the Issue Date; (y) . Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Issuer will offer the Exchange Notes in exchange for surrender of the Notes. The Issuer shall keep the Exchange Offer open for at least 30 days not less than 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: that (i) such Holder is not an affiliate of the Issuer within the meaning of the Securities Act, (ii) any Exchange Notes acquired in exchange for Registrable Notes tendered are being to be received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (iiiii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of as such term is used in the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; , (iiiiv) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is an “affiliate” (as defined in Rule 405) of the Company ornot a broker-dealer, if that it is an affiliate of the Companynot engaged in, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends does not intend to engage in in, a distribution of the Exchange Notes; Notes and (v) if such Holder is a Participating Brokerbroker-Dealer, such Holder has dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired the Registrable Notes as a result of market-making activities or other trading activities and that activities, it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) deliver a Prospectus in connection with any resale of the such Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section SECTION 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section SECTION 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause SECTION 2(c)(iv) hereof applies) pursuant to Section SECTION 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include Issuer and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a Prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes (other than a resale of an unsold allotment resulting from the original offering of the Notes). The Issuer and the Initial Purchasers also acknowledge that it is the staff of the Commission's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a section entitled “Plan plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable distribution containing a statement to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies above effect and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in compliance connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act. The Issuers shall In light of the foregoing, if requested by a Participating Broker-Dealer (a "REQUESTING PARTICIPATING BROKER-DEALER"), the Issuer agrees to use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such a period of time as is necessary up to comply with applicable law in connection with any resale of 180 days after the date on which the Exchange Notes; providedOffer Registration Statement is declared effective, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section SECTION 5 hereof (such period, the “Applicable Period”"APPLICABLE PERIOD"), or such earlier date as all Requesting Participating Broker-Dealers shall have notified the Issuer in writing that such Requesting Participating Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer. The Issuer shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph. If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Holder holds any Notes acquired by them it that have have, or that are reasonably likely to be determined to have, the status of an unsold allotment in the an initial distribution, or if any Holder is not entitled to participate in the IssuersExchange Offer, the Issuer upon the request of the Initial Purchasersany such Holder shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasersany such Holder, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company, guaranteed by the Guarantors, Issuer that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(43) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Notes Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; Commission, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; Issuer and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture (in either case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the IndentureIndenture or Additional Interest upon a Registration Default. The Indenture or such indenture shall provide that that, as to each class of Notes under the Indenture, the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, In the event that (i) because of any change changes in law or in currently prevailing the applicable interpretations of the staff of the SEC, Commission do not permit the Issuers are not permitted Issuer to effect the Exchange Offer, (ii) if for any reason the Exchange Offer is not consummated within 360 180 days of after the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) so requests; or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days after (each such Holder first becomes aware of such restrictions, event referred to in the case of each of clauses (i) to and including through (iv) of this sentence, a "SHELF FILING EVENT"), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and Issuer shall file a Shelf Registration pursuant to Section SECTION 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless The Company shall (and shall cause each Subsidiary Guarantor with respect to its guarantee) to (i) prepare and file with the SEC no later than the Filing Date, a registration statement (the "EXCHANGE REGISTRATION STATEMENT") on an appropriate form under the Securities Act with respect to an offer (the "EXCHANGE OFFER") to the Holders of Registrable Securities to issue and deliver to such Holders, in exchange for the Securities issued under the Indenture, a like principal amount of Exchange Securities issued under the Indenture, (ii) use reasonable best efforts to cause the Exchange Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than September 30, 2004, (iii) keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use its reasonable best efforts to issue on or prior to 45 days after the date on which the Exchange Registration Statement is declared effective, Exchange Securities in exchange for all Securities issued under the Indenture and validly tendered and not withdrawn prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC, .
(b) The Exchange Securities shall be issued under and entitled to the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all benefits of the Registrable Notes for a like aggregate principal amount of debt securities Indenture (other than such changes as are necessary to comply with any requirements of the Company SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the “Exchange Notes”), guaranteed on a senior basis by Securities will accrue (A) from the Guarantors, that are identical in all material respects to the Notes, except that later of (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) last interest thereon shall accrue from the last payment date on which interest was paid on the Notes Securities surrendered in exchange therefor or (ii) if the Security is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, such interest payment date; or (B) if no such interest has been paidpaid on the Securities, from the Issue Date. Each Exchange Security shall bear interest at the rate set forth thereon; provided, and which are entitled that interest with respect to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or period prior to the 360th day following issuance thereof shall accrue at the Issue Date. Each Holder rate or rates borne by the Securities from time to time during such period.
(includingd) The Company may require each Holder, without limitation, each Participating Broker-Dealer) who participates as a condition to participation in the Exchange Offer will be required Offer, to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that, at the time of the commencement or and consummation of the Exchange Offer neither such Holder norOffer, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an not entered into any arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; , and (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that if such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the CompanyCompany within the meaning of the Securities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesit.
(be) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company shall:
(1) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary depository for the Exchange Offer with an address in the Borough of Manhattan, The the City of New York, which may be the Trustee or an affiliate thereof;
(43) permit Holders to withdraw tendered Notes Registrable Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(f) As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers Company shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anynot validly withdrawn;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notestendering such Registrable Securities, Exchange Notes or Private Exchange Notes, as the case may be, Securities equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. .
(g) The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall Securities will be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall which will provide that the Exchange Notes shall Securities will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes Securities and the Notes shall vote and consent together on all matters as Securities, if any, will be deemed one class and that none of security (subject to the provisions of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matterIndenture).
(ch) If, (i1) because of any change in law or in currently prevailing interpretations of the staff of the SEC, SEC would not permit the Issuers are not permitted to effect consummation of the Exchange Offer, Offer as contemplated by this Section 2 or (ii2) the Exchange Offer is not consummated within 360 45 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged Effectiveness Date for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentencereason, then the Issuers Company (and any then existing Subsidiary Guarantor) shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”"SHELF NOTICE") and shall file a Shelf Registration Statement pursuant to Section 3 hereof3.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Callon Petroleum Co)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use their commercially reasonable efforts to file with the SEC, no later than SEC (within such time as to comply with the Filing Date, requirements of the last sentence of this paragraph) a Registration Statement (the “Exchange Offer Registration Statement”"EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate registration form with respect to a registered offer (the “Exchange Offer”"EXCHANGE OFFER") to exchange any and all of the Registrable Notes of each series of Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”"EXCHANGE NOTES"), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the applicable series of Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon thereon, (ii) subject to compliance herewith, the Exchange Notes shall not be subject to any increase in annual interest rate as set forth in Section 4(a) hereof and (iiiii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Each Issuer shall (x) use its commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) use its commercially reasonable efforts to consummate the Exchange Offer on or prior to the 360th day following the Issue Dateclosing date of the Acquisition (or if such 360th day is not a Business Day, the next succeeding Business Day). Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “"affiliate” " (as defined in Rule 405) of the Company any Issuer or, if it is an affiliate of the Companyany Issuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; (v) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is prohibited by any law or policy of the SEC from participating in the Exchange Offer; and (vvi) if such Holder is a Participating Broker-DealerBrokerDealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandisMUTATIS MUTANDIS, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers; PROVIDED, and HOWEVER, that the Company Issuers shall have no further obligation to register Registrable Notes Notes, or file any Registration Statement in respect thereof, (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereofthis Agreement. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “"beneficial owner” " (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker"PARTICIPATING BROKER-Dealer”DEALER"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Each of the Issuers shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; providedPROVIDED, howeverHOWEVER, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”"APPLICABLE PERIOD"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”"PRIVATE EXCHANGE") for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”"PRIVATE EXCHANGE NOTES") of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, a principal amount of Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided PROVIDED that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Company determines upon advice of its outside counsel that it is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Dateclosing date of the Acquisition, (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company Issuers at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act U.S. state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities ActAct and other than any Participating Broker-Dealer by virtue of any prospectus delivery requirement) and so notifies the Company within 30 days after such Holder first becomes aware prior to the 20th Business Day following consummation of the Exchange Offer of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”"SHELF NOTICE") and the Issuers shall file a Shelf Registration pursuant to Section 3 hereof; PROVIDED, HOWEVER, that no Holder (other than an Initial Purchaser) shall be entitled to have the Notes held by it covered by such Shelf Registration unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder.
Appears in 1 contract
Exchange Offer. (a) Unless The Company shall (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the "Exchange Offer Registration Statement") on an appropriate form under the Securities Act with respect to a proposed offer (the "Exchange Offer") to the Holders to issue and deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of Exchange Securities, (ii) use its best efforts to cause the Exchange Offer Registration Statement to become effective as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) use its best efforts to keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use its best efforts to issue, on or prior to 30 business days after the date on which the Exchange Offer Registration Statement is declared effective, Exchange Securities in exchange for all Notes tendered prior thereto pursuant to the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law Applicable Law or any applicable interpretation of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and entitled to the benefits of, the Issuers shall use commercially reasonable efforts Indenture or a trust indenture that is identical to file the Indenture (other than references to series, provisions with regard to restrictive legends and such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA).
(c) In connection with the SECExchange Offer, no later than the Filing Date, Company shall:
(i) mail to each Holder a Registration Statement (copy of the “Prospectus forming part of the Exchange Offer Registration Statement”) on , together with an appropriate registration form letter of transmittal that is an exhibit thereto and related documents;
(ii) use its best efforts to keep the Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depository for the Exchange Offer with respect an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to a registered offer withdraw tendered Notes at any time prior to 12:00 midnight, New York time, on the last Business Day on which the Ex change Offer shall remain open; and
(the “Exchange Offer”v) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical otherwise comply in all material respects with all laws applicable to the NotesExchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, except that the Company shall:
(i) accept for exchange all Notes validly tendered and not validly withdrawn pursuant to the Exchange Notes shall contain no restrictive legend thereon and Offer;
(ii) interest thereon shall deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii) use its best efforts to cause the Trustee promptly to authenticate and deliver to each Holder of Notes, Exchange Securities equal in aggregate principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange Security will accrue from the last interest payment date on which interest was paid on the Notes or surrendered in exchange therefor or, if no such interest has been paidpaid on the Notes, from the Issue Date, date of original issue of the Notes. Each Exchange Security and which are entitled Private Exchange Security shall bear interest at the rate set forth thereon; provided that interest with respect to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or period prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) issuance thereof shall accrue at the time of rate or rates borne by the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from time to time during such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesperiod.
(bf) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain " containing a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including (without limitation) all Participating BrokerBrokers-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActSecurities. The Issuers Company shall use commercially reasonable its best efforts to keep the Exchange Ex change Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange NotesSecurities; provided, however, provided that such period shall not exceed 180 days after consummation of the Exchange Offer (as such period may be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Jordan Telecommunication Products Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “"Exchange Offer Registration Statement”") on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company Issuer (the “"Exchange Notes”"), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical other trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use their commercially reasonable efforts to (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed or otherwise transmitted to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 300th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “"affiliate” " (as defined in Rule 405) of the Company Issuers or, if it is an affiliate of the CompanyIssuers, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof hereto in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofhereto; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, apply solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof hereto applies) pursuant to Section 3 hereofhereto. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “"beneficial owner” " (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to the extent necessary to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof hereto (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the Initial Purchasers, Purchasers shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “"Private Exchange”") for such Notes held by any such Holder, a like principal amount of notes (the “"Private Exchange Notes”") of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauNotes. In connection with the Exchange Offer, the Issuers shall:
(1) mailmail or otherwise transmit, or cause to be mailedmailed or otherwise transmitted, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer is mailed or otherwise transmitted to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes Securities held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than those set forth herein that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which that might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, If (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 300 days of the Issue Date, (iii) the Initial Purchasers or any Holder holder of Private Exchange Notes so requests in writing to the Company Issuer at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days 20 Business Days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof thereto (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereofhereto.
Appears in 1 contract
Samples: Registration Rights Agreement (Cogent Management Inc)
Exchange Offer. (a) Unless The Issuers shall (and shall cause each Subsidiary Guarantor with respect to its guarantee) to (i) prepare and file with the SEC promptly after the date hereof, but in no event later than the Filing Date, a registration statement (the "EXCHANGE REGISTRATION STATEMENT") on an appropriate form under the Securities Act with respect to an offer (the "EXCHANGE OFFER") to the Holders of Registrable Units to issue and deliver to such Holders, in exchange for the Units, a like number of Exchange Units as substitute evidence of indebtedness originally evidenced by the Registrable Units, (ii) use their best efforts to cause the Exchange Registration Statement to be declared effective by the SEC as promptly as practicable after the filing thereof, but in no event later than the Effectiveness Date, (iii) keep the Exchange Registration Statement effective until the consummation of the Exchange Offer in accordance with its terms, including the right of the Holders of Registrable Units to exchange their Units for Exchange Units, and (iv) unless the Exchange Offer would not be permitted by a policy of the SEC, commence the Exchange Offer and use their best efforts to issue on or prior to 30 Business Days after the date on which the Exchange Registration Statement is declared effective, Exchange Units in exchange for all Units tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement Issuers shall continue to apply, mutatis mutandis, solely have no further registration obligations other than with respect to Registrable Notes that are (i) Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv(ii) is applicable and Exchange Notes held by Participating Broker-Dealers, Dealers and the Company shall have no further obligation to register Registrable (iii) Notes (other than Private Exchange Notes and or Exchange Notes as to which clause 2(c)(iv) Section 3 hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes Units shall be issued pursuant under, and entitled to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offerbenefits of, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an a trust indenture that is identical in all material respects to the Indenture and which, in either case, conforms (other than such changes as are necessary to comply with any requirements of the requirements necessary for qualification SEC to effect or maintain the qualifications thereof under the TIA or is exempt from such qualification TIA) and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereofCollateral Agreements.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the SEC, the Issuers shall use commercially reasonable efforts agrees to file with the SEC, Commission no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Registered Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to to, and representing the Notessame continuing indebtedness as, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from (the Issue Date, “Registered Exchange Notes”) (and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (including, without limitation, the guarantee provisions thereof) (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the TIACommission to effect or maintain the qualification thereof under the TIA or which eliminate the transfer restrictions on the Notes or provisions for the payment of additional interest in certain circumstances) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Registered Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon or provisions for the payment of additional interest under certain circumstances. The Registered Exchange Offer shall be registered under the Securities Act on the appropriate form (the “Exchange Registration Statement”) and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Registered Exchange Offer open for at least 30 days not less than 20 Business Days (or longer if required by applicable law) after the date that notice of the Registered Exchange Offer is first mailed to Holders; and (z) consummate the Registered Exchange Offer on or prior to the 360th 270th day following the Issue Date. If after such Exchange Registration Statement is initially declared effective by the Commission, the Registered Exchange Offer or the issuance of the Registered Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court with respect to such Registered Exchange Offer, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Registered Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Registered Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Registered Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” distribution of the Registered Exchange Notes, (iii) that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to any additional representations that the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesIssuers may reasonably request. Upon consummation of the Registered Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Registered Exchange Notes as to which Section 2(c)(iv2(c)(iii) is applicable and Registered Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and in respect of any Registered Exchange Notes as to which clause 2(c)(iv2(c)(iii) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement the information set forth on Annex A in a section entitled “Plan of Distribution,.” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement Each of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary beginning when the Registered Exchange Notes are first issued in the Registered Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Registered Exchange Offer has been completed and such Persons are no longer required to comply with applicable law the prospectus delivery requirements in connection with any resale offers and sales of the Registered Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Registered Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(43) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Registered Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Registered Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange, if anyOffer;
(2) deliver to the Trustee for cancellation in accordance with the Indenture all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange tendering such Registrable Notes or Private Registered Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Registered Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall event will provide that the Registered Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Registered Exchange Notes and the Notes shall Notes, if any, will vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Registered Exchange Notes or the Notes Notes, if any, will have the right to vote or consent as a separate class on any matter. For greater certainty, the Registered Exchange Notes that will be issued in exchange and in substitution for the Notes will evidence the same continuing indebtedness as the Notes.
(c) If, If (i) because of any change in law or in currently prevailing interpretations of the staff Staff of the SECCommission, the Issuers are Company determines that it is not permitted to effect the an Registered Exchange Offer, (ii) the Registered Exchange Offer is not consummated within 360 270 days of the Issue Date, Date or (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Registered Exchange OfferOffer (and tenders its Registrable Notes prior to the expiration thereof), such Holder does not receive Registered Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company any Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware following the consummation of such restrictionsthe Registered Exchange Offer (and providing a reasonable basis for its conclusions), in the case of each of clauses (i) to and including (iv) of this sentencei)-(iv), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof3.
(d) Any distribution in Canada of the Registered Exchange Notes will be effected solely to holders of Registrable Notes who would be eligible to acquire Registered Exchange Notes pursuant to exemptions from the requirement under applicable Canadian securities legislation that the Issuers prepare and file a prospectus with the relevant Canadian securities regulatory authorities and, as a condition to the sale of their Registrable Notes pursuant to the Registered Exchange Offer, holders of Registrable Notes in Canada will be required to make certain representations to the Issuers, including a representation that they are entitled under applicable provincial securities laws to acquire the Registered Exchange Notes without the benefit of a prospectus qualified under applicable provincial securities laws.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of the SEC, the Issuers shall use commercially reasonable efforts agrees to file with the SEC, Commission no later than the Filing Date, a Registration Statement an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes (other than Private Exchange Notes, if any) for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that which are identical in all material respects respects, and representing the same continuing indebtedness as, to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (including, without limitation, the guarantee provisions thereof) (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the TIACommission to effect or maintain the qualification thereof under the TIA or which eliminate the transfer restrictions on the Notes or provisions for the payment of additional interest in certain circumstances) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon or provisions for the payment of additional interest under certain circumstances. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the "Exchange Registration Statement") and shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable lawsAct. The Each of the Issuers shall agrees to use its reasonable best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days not less than 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is first mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 135th day following the Issue Date. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court with respect to such Exchange Offer, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” distribution of the Exchange Notes, (iii) that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, any additional representations that in the written opinion of counsel to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution Issuers are necessary under then-existing interpretations of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) Commission in connection with any resale of order for the Exchange NotesRegistration Statement to be declared effective. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and other than in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC Commission with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff Staff of the SEC Commission or such positions or policies policies, in the judgment of the Initial Purchasers, represent the prevailing views of the staff Staff of the SECCommission. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SECCommission, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SECso permitted, all Participating Broker-Dealers, and include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary beginning when the Exchange Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Exchange Offer has been completed and such Persons are no longer required to comply with applicable law the prospectus delivery requirements in connection with any resale offers and sales of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Notes (the “"Applicable Period”"). If, prior to upon the consummation of the Exchange Offer, the any Initial Purchasers hold Purchaser holds any Notes acquired by them it that have the status of an unsold allotment in the initial distribution, the Issuers, Issuers upon the request of the such Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the such Initial PurchasersPurchaser, in exchange (the “"Private Exchange”") for such the Notes held by any such HolderInitial Purchaser, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes except for the placement existence of a restrictive legend restrictions on such transfer thereof under the Securities Act and securities laws of the several states of the U.S. (the "Private Exchange Notes. The Private Exchange Notes shall be ") (and which are issued pursuant to the same indenture as the Exchange Notes). The Private Exchange Notes and shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if permitted by no interest has been paid on the CUSIP Service BureauNotes, from the Issue Date. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
(43) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(54) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2) deliver to the Trustee for cancellation in accordance with the Indenture all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and whichIndenture, which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide and that the Exchange Notes, the Private Exchange Notes and the Notes shall Notes, if any, will vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes Notes, if any, will have the right to vote or consent as a separate class on any matter. For greater certainty, the Exchange Notes and the Private Exchange Notes, if any, that will be issued in exchange and in substitution for the Notes will evidence the same continuing indebtedness as the Notes.
(c) If, If (i) because of any change in law or in currently prevailing interpretations of the staff Staff of the SECCommission, the Issuers are Company is not permitted to effect the an Exchange Offer, (ii) the Exchange Offer is not consummated within 360 165 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange OfferOffer (and tenders its Registrable Notes prior to the expiration thereof), such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company any Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware following the consummation of such restrictionsthe Exchange Offer (and providing a reasonable basis for its conclusions), in the case of each of clauses (i) to and including (iv) of this sentencei)-(iv), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a Shelf Registration pursuant to Section 3 hereof3.
(d) Any distribution in Canada of the Exchange Notes will be effected solely to holders of Registrable Notes who would be eligible to acquire Exchange Notes pursuant to exemptions from the requirement under applicable Canadian securities legislation that the Company prepare and file a prospectus with the relevant Canadian securities regulatory authorities and, as a condition to the sale of their Registrable Notes pursuant to the Exchange Offer, holders of Registrable Notes in Canada will be required to make certain representations to the Company, including a representation that they are entitled under applicable provincial securities laws to acquire the Exchange Notes without the benefit of a prospectus qualified under applicable provincial securities laws.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC or would not be permitted by the staff of the SEC, the Issuers Issuer shall use its commercially reasonable efforts to file cause to be filed with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are to the extent applicable, on an unsecured senior basis, in the case of the Senior Notes, and on an unsecured senior subordinated basis, in the case of the Senior Subordinated Notes (such guarantees, the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), having terms substantially identical in all material respects to the Cash Pay Notes, the Toggle Notes or the Senior Subordinated Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue (A) from the later of (x) the last date on which interest was paid on such Notes or (y) if the Notes are surrendered for Exchange Notes on a date in a period that includes the record date for an interest payment date for an interest payment to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment or (B) if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Senior Indenture or the Senior Subordinated Indenture, as applicable, or a trust indenture which is identical in all material respects to the applicable Indenture (other than such changes to the applicable Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall (x) use its commercially reasonable efforts to (w) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (x) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness DateAct; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the any Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the such Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by the Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or such longer period period, if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are to the extent applicable, on an unsecured senior basis, in the case of Private Exchange Notes issued in exchange for Senior Notes, and on an unsecured senior subordinated basis, in the case of Private Exchange Notes issued in exchange for Senior Subordinated Notes, having terms substantially identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the related Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that on which notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as reasonably practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange NotesNotes (and related guarantees), as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the applicable Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange. If the Issuer determines in its reasonable judgment that any of the foregoing conditions is not satisfied, the Issuer may (a) refuse to accept any Registrable Securities and return all tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however, to the rights of Holders to withdraw those Registrable Securities, or (c) waive the unsatisfied conditions with respect to the Exchange Offer and accept all properly tendered Registrable Securities that have not been withdrawn. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Senior Indenture or the Senior Subordinated Indenture, as applicable, or (ii) an indenture identical in all material respects to the Senior Indenture or the Senior Subordinated Indenture, as applicable, with such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA, and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the relevant Indenture. The Senior Indenture or such identical indenture shall provide that the Senior Notes and the related Exchange Notes, the Notes and Private Exchange Notes and the Notes issued in exchange therefor shall vote and consent together on all matters as one class and that none of the Senior Notes or the related Exchange Notes, the Notes and Private Exchange Notes will have the right to vote or consent as a separate class on any matter. The Senior Subordinated Indenture or such identical indenture shall provide that the Senior Subordinated Notes and the related Exchange Notes and Private Exchange Notes issued in exchange therefor shall vote and consent together on all matters as one class and that none of the Senior Subordinated Notes or the related Exchange Notes and Private Exchange Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day, (iii) any Holder of Private Exchange Notes so reasonably requests in writing to the Company Issuer at any time after the consummation of the Exchange Offer with respect to Notes Offer, (including Private Exchange Notesiv) that were ineligible to be exchanged for Exchange Notes because of any change in the Exchange Offer (law or in currently prevailing interpretation of the case staff of Private Exchange Notesthe SEC, were a Holder is not issued in exchange for Notes that are or were eligible permitted to be exchanged participate in the Exchange Offer) , or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (ivv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (for delivery to the Trustee Holders) written notice thereof (the “Shelf Notice”) and, in lieu of (or in the case of the preceding clauses (iii) and (v), in addition to) effecting registration of the Exchange Securities, shall file a Shelf Registration Statement pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts The Company agrees to file with the SEC, no later than SEC on or before the Filing Date, a Registration Statement Date an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes -------------- Securities for a like aggregate principal amount of senior subordinated debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, that are identical in all material respects to the Notes, except Notes (the "Exchange -------- Securities") (and that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which that is ---------- identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification of such trust indenture under the TIA) and which, in either case, conforms to the requirements necessary for qualification that has been qualified under the TIA), except that the Exchange Securities shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall will be registered under the Securities Act on the appropriate form (the "Exchange Offer Registration --------------------------- Statement") and will comply with all applicable tender offer rules and --------- regulations under the Exchange Act and other applicable lawsAct. The Issuers shall (x) Company agrees to use its commercially reasonable best efforts (i) to cause the Exchange Offer Registration Statement to be declared become effective under and to commence the Securities Act Exchange Offer on or before prior to the Effectiveness Date; , (yii) to keep the Exchange Offer open for at least 30 20 business days (or longer if required by applicable law) after (the date that notice last day of such period, the Exchange Offer is mailed to Holders; "Expiration Date") and (ziii) consummate to exchange Exchange Securities for all Notes ---------------- validly tendered and not withdrawn pursuant to the Exchange Offer on or prior to the 360th fifth day following the Issue Expiration Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required deemed to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being Securities received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from and that such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is not an affiliate of the Company, it will comply with Company within the registration and prospectus delivery requirements meaning of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange NotesAct. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesSecurities, Exchange Notes as Securities to which Section 2(c)(iv2(c)(v) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes Securities and other than Exchange Notes Securities as to which clause 2(c)(ivSection 2(c)(v) hereof applies) pursuant to Section 3 hereofof this Agreement. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, " reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff Staff of the SEC (and publicly disseminated) with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes Securities received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " --------------------------- section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus prospectus by all Persons persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActSecurities. The Issuers Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons persons subject to the prospectus delivery requirements of the Securities Act for at least 180 days following the first bona fide offering of securities under such period of Registration Statement (or such shorter time as is necessary to such persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof Securities) (the “"Applicable Period”"). ----------------- If, prior to consummation of the Exchange Offer, the any Initial Purchasers hold Purchaser holds any Notes acquired by them that have it and having, or which are reasonably likely to be determined to have, the status of an unsold allotment in the initial distribution, the Issuers, Company upon the request of the such Initial PurchasersPurchaser shall, shall simultaneously with the delivery of the Exchange Notes Securities in the Exchange Offer, issue and deliver to the such Initial PurchasersPurchaser, in exchange (the “"Private ------- Exchange”") for such the Notes held by any such HolderInitial Purchaser, a like principal amount -------- of notes (the “Private Exchange Notes”) debt securities of the Company, guaranteed by the Guarantors, Company that are identical in all material respects to the Exchange Notes Securities (the "Private Exchange Securities") (and which are issued pursuant to the same --------------------------- indenture as the Exchange Securities) (except for the placement of a restrictive legend on such Private Exchange NotesSecurities). The Private Exchange Notes Securities shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service BureauSecurities. In connection with Interest on the Exchange OfferSecurities and Private Exchange Securities will accrue from the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on the Issuers shall:
(1) mailNotes, or cause to be mailed, to each Holder of record entitled to participate in from the Issue Date. Any indenture under which the Exchange Offer a copy Securities or the Private Exchange Securities will be issued shall provide that the holders of the Prospectus forming part any of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer Securities and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall Securities will vote and consent together on all matters to which such holders are entitled to vote or consent as one class and that none of the holders of the Exchange Notes, Securities and the Private Exchange Notes or the Notes Securities will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff Staff of the SEC, the Issuers are Company reasonably determined in good faith, after consultation with counsel, that it is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of commenced on or prior to the Issue Effectiveness Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect is, for any reason, not consummated on or prior to Notes the 165th day after the Closing Date, (including Private Exchange Notesiv) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case any Holder of Private Exchange NotesSecurities so requests, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (ivv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (the Securities Act (other than due solely to the status occurrence of any such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsevent, a "Shelf Registration Event"), then, in the case of each of clauses (i) to and ------------------------- including (ivv) of this sentence, then the Issuers Company shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall thereafter ------------ file a an Initial Shelf Registration Statement pursuant to Section 3 hereof3.
Appears in 1 contract
Samples: Registration Rights Agreement (Tci Satellite Entertainment Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use commercially its reasonable best efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior subordinated basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Fixed Rate Notes or Floating Rate Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 6 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by the Market-Maker and Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Securities and the Senior Notes (and the related guarantees) shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Issuer deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuer at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Sungard Data Systems Inc)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, each of the Issuers Company and the Guarantors shall use their respective commercially reasonable efforts to prepare and file with the SECSEC one or more Registration Statements (each, no later than the Filing Date, a Registration Statement (the an “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Transfer Restricted Securities for a like aggregate principal amount of debt securities of the applicable series of the Company (such debt securities, the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the Guarantors, (the “Exchange Notes Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are substantially identical in all material respects to the Notes, Notes except that the Exchange Notes (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue interest from (A) the later of (x) the last date on which interest was paid on the such Notes or (y) if such Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no such interest has been paid, from the Issue DateJune 1, 2014 and which are (iii) shall be entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable federal and state securities laws. The Issuers Company and the Guarantors shall (x) use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (yx) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (zy) consummate the Exchange Offer on or prior to the 360th 270th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) substantially to the effect that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Transfer Restricted Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities ActSecurities; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of either the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereofor any Guarantor; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Broker Dealer, such Holder has acquired the Registrable Notes Transfer Restricted Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) ). In addition, all Holders of Transfer Restricted Securities shall otherwise cooperate in connection with any resale of the Company’s preparations for the Exchange NotesOffer. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Transfer Restricted Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) hereof is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes Transfer Restricted Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(b) The Issuers Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Broker Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period as extended, if extended at all, pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersCompany, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Transfer Restricted Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which which, in the Company’s judgment, might materially impair the ability of the Issuers Company to proceed with the Exchange Offer or the Private Exchange, and and, in the Company’s judgment, no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersCompany; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Company deems necessary for the consummation of the Exchange Offer or Private ExchangeExchange and (iv) the accuracy of customary representations of the Holders and other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations, the satisfaction by the Holders of customary conditions relating to the delivery of Securities and the execution and delivery of customary documentation relating to the Exchange Offer. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification have been qualified under the TIA or is are exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such other indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers Company or the Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of by the 270th day following the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company or any Guarantor within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsrestrictions (but in any event no later than 30 days after the consummation of the Exchange Offer), in the case of each of clauses (i) to and including through (iv) of this sentence, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (APX Group Holdings, Inc.)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company and guarantees of the Guarantors (collectively, the “Exchange Notes”)) that are, guaranteed on a senior basis by the Guarantorsin each case, that are identical in all material respects to the NotesSecurities, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from (A) the later of (1) the last date on which interest was paid on the Notes or (2) if the Note is surrendered for exchange on a date between the record date for interest payment and that interest payment date, the interest payment date, or, (B) if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially their reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 180th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers Company in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer Offer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in in, the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405405 under the Securities Act) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their its Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Notes, Exchange Notes as to which clause Section 2(c)(iv) hereof appliesapplies and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use commercially their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 150 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes Securities acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes Securities held by any such Holder, a like principal amount of notes of the Company and guarantees of the Guarantors (collectively, the “Private Exchange Notes”) of the Companythat are, guaranteed by the Guarantorsin each case, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes Securities at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of NotesSecurities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes Securities of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private ExchangeExchange shall have been obtained. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 180 days of the Issue Date, (iii) the Initial Purchasers or any Holder other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuers within the meaning of the Securities Act) and so notifies the Company Issuers within 30 60 days after such Holder first becomes aware the consummation of such restrictionsthe Exchange Offer, then in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Heritage Property Investment Trust Inc)
Exchange Offer. (a) Unless the Exchange Offer would not be permitted by applicable laws or a policy of the SEC, the Company shall (and shall cause each Guarantor to)
(i) prepare and file with the SEC, a registration statement (the “Exchange Registration Statement”) on an appropriate form under the Securities Act with respect to an offer (the “Exchange Offer”) to the Holders of Notes to issue and deliver to such Holders, in exchange for the Notes, a like principal amount of Exchange Notes and (ii) use its commercially reasonable efforts to Consummate the Exchange Offer within 365 days of the Closing Date (the “Consummation Date”). The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to the benefits of, the Issuers shall use commercially reasonable efforts to file with the SEC, no later than the Filing Date, Indenture or a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”), guaranteed on a senior basis by the Guarantors, trust indenture that are is substantially identical in all material respects to the Notes, except that Indenture (other than such changes as are necessary to comply with any requirements of applicable law or the SEC to effect or maintain the qualifications thereof under the TIA).
(c) Interest on the Exchange Notes will accrue from (i) the Exchange Notes shall contain no restrictive legend thereon and later of (iix) interest thereon shall accrue from the last interest payment due date on which interest was paid on the Notes surrendered in exchange therefor or (y) if the Note is surrendered for exchange after the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (ii), if no such interest has been paidpaid on the Notes, from the Issue Closing Date. Each Exchange Note shall bear interest at the rate set forth thereon; provided, and which are entitled that interest with respect to the benefits of the Indenture or a trust indenture which is identical in all material respects period prior to the Indenture issuance thereof shall accrue at the rate or rates borne by the Notes from time to time during such period.
(other than such changes d) The Company may require each Holder as a condition to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, participation in either case, conforms to the requirements necessary for qualification under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under represent prior to the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice expiration of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: that (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by such Holder will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or and consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an not entered into any arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; , (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that if such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate within the meaning of Rule 405 of the CompanySecurities Act, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; it, (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from if such Holder is engaging in or intends not a broker-dealer, that it is not engaged in, and does not intend to engage in a in, the distribution of the Exchange Notes; Notes and (v) if such Holder is a Participating Broker-DealerDealer (as defined below), such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) deliver a Prospectus in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notes.
(be) The Issuers Company shall (and shall cause each Guarantor to) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, Representative which shall contain a summary statement all of the positions taken or policies made by the staff of information that the SEC may require with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer for its own account in exchange for Notes that were acquired by it as a result of market-making or other trading activity (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permitallow, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by manner in which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities ActNotes. The Issuers Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein therein, in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act Participating Broker-Dealers for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, that such period shall not be required to exceed 90 the lesser of 180 days or such longer period if extended pursuant to and the last paragraph of Section 5 hereof date on which all Participating Broker-Dealers have sold all Exchange Notes held by them (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange .
(the “Private Exchange”f) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shallCompany shall (and shall cause each Guarantor to) use commercially reasonable efforts to:
(1i) mail, mail or cause to be mailed, mailed to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (substantially in the form attached as an exhibit to the Exchange Offer Registration Statement) and any related documents;
(2ii) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days 20 Business Days after the date that notice of the Exchange Offer thereof is mailed to the Holders (or longer if required by applicable law);
(3iii) utilize the services of a depositary depository for the Exchange Offer with Offer, which may be the Trustee or an address in the Borough of Manhattan, The City of New Yorkaffiliate thereof;
(4iv) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York City time, on the last Business Day on which the Exchange Offer remains shall remain open; and
(5v) otherwise comply in all material respects with all applicable laws, rules and regulations. .
(g) As soon as practicable after the close of the Exchange Offer the Company shall (and the Private Exchange, if any, the Issuers shall:shall cause each Guarantor to):
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if anynot validly withdrawn;
(2ii) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of validly tendering such Registrable Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that .
(ih) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture substantially identical in all material respects to the Indenture and which(other than such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA), which in either case, conforms to the requirements necessary for qualification under the TIA or is exempt from such qualification and shall event will provide that the Exchange Notes shall will not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide , and that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as will be deemed one class and that none of security (subject to the provisions of the Indenture).
(i) If: (i) prior to the Consummation of the Exchange NotesOffer, the Private Holders of a majority in aggregate principal amount of Registrable Notes determines in its or their reasonable judgment that (A) upon the advice of counsel that the Exchange Notes would not, upon receipt, be tradeable by the Holders thereof without restriction under the Securities Act and the Exchange Act and without material restrictions under applicable Blue Sky or state securities laws, or (B) the Notes will have interests of the right to vote or consent Holders under this Agreement, taken as a separate class on any matter.
whole, would be materially adversely affected by the consummation of the Exchange Offer and, in the case of (cA) Ifor (B), notifies the Company in writing of such determination; (iii) because of any change in law or in currently prevailing applicable interpretations of the staff of the SEC, SEC would not permit the Issuers are not permitted to effect Consummation of the Exchange Offer, ; (iiiii) the Exchange Offer is not consummated within 360 days of Consummated by the Issue Date, (iii) Consummation Date for any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) reason; or (ivv) in the case of (A) any Holder that participates prohibited by applicable law or SEC policy from participating in the Exchange Offer, such (B) any Holder does not receive participating in the Exchange Offer that receives Exchange Notes on the date of the exchange that may not be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of Rule 405 of the Securities Act) and so or (C) any broker-dealer that holds Notes acquired by such broker-dealer directly from the Company or any of its affiliates and, in each such case contemplated by this clause (v), such Holder notifies the Company in writing within 30 days after such Holder first becomes aware 20 Business Days of the Consummation of the Exchange Offer, then the Company shall promptly (and in any event within five Business Days of such restrictions, notification) deliver to the Holders (or in the case of each an occurrence of clauses any event described in clause (i) to and including (ivv) of this sentenceSection 2(i), then the Issuers shall promptly deliver to the Holders any such Holder) and the Trustee written notice thereof (the “Shelf Notice”) and shall as promptly as practicable thereafter file a an Initial Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) a. Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use commercially its reasonable best efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (such guarantees, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which (iii) the Exchange Notes are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall use its reasonable best efforts to (x) use commercially reasonable efforts to cause prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
b. The Issuer shall (bi) The Issuers shall include the information set forth in Annex A hereto on the cover, in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section and in Annex C hereto in the “Plan of Distribution” section of the Prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the letter of transmittal delivered pursuant to the Exchange Offer, (ii) if requested by an Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the Prospectus forming a part of the Exchange Offer Registration Statement, (iii) include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which which, in addition to the information in Annex C, shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers Issuer shall use commercially its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, deliver to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers Issuer deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) c. If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuer at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers Issuer shall use its commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuer (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an unsecured senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, Senior Notes except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Senior Notes or or, if no such interest has been paid, from the Issue Date, Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers Issuer shall (x) use its commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (yx) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (zy) consummate the Exchange Offer on or prior to the 360th 365th day following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers Issuer in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company Issuer or, if it is an affiliate of the CompanyIssuer, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 5 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv) is applicable and Exchange Notes Securities held by Participating Broker-Dealers, and the Company Issuer shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers Issuer shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and shall include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers Issuer shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days or days, such longer period if extended pursuant to the last paragraph of Section 5 6 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Senior Notes acquired by them that have the status of an unsold allotment in the initial distribution, the IssuersIssuer, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Senior Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuer, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware;
(4) permit Holders to withdraw tendered Senior Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, the Issuers Issuer shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Senior Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Senior Notes of such Holder so accepted for exchange; provided that, in the case of any Senior Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Senior Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers Issuer to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the IssuersIssuer; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem Issuer deems necessary for the consummation of the Exchange Offer or Private Exchange, as the case may be. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Senior Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Senior Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are Issuer is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 365 days of the Issue Date, (iii) any Holder holder of Private Exchange Notes so requests in writing to the Company Issuer at any time within 30 days after the consummation of the Exchange Offer with respect to Notes (including Private Exchange Notes) that were ineligible to be exchanged for Exchange Notes in the Exchange Offer (or in the case of Private Exchange NotesOffer, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes Securities on the date of the exchange that may be sold without restriction under the Securities Act state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company Issuer within the meaning of the Securities Act) and so notifies the Company Issuer within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers Issuer shall promptly deliver to the Holders and Trustee (to deliver to the Trustee Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Comdata Network, Inc. Of California)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, or there are no Registrable Securities outstanding, the Issuers shall use their commercially reasonable efforts to file with the SEC, no later than the Filing Date, SEC a Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the Registrable Notes Securities for a like aggregate principal amount of debt securities of the Company Issuers (the “Exchange Notes”), guaranteed guaranteed, to the extent applicable, on a an senior basis by the GuarantorsGuarantors (the “New Guarantees” and, together with the Exchange Notes, the “Exchange Securities”), that are identical in all material respects to the Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon and thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on the such Notes or or, if no such interest has been paid, from the Issue Date, Date and which are (iii) the Exchange Securities shall be entitled to the benefits of the Indenture an indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA. The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use their commercially reasonable efforts to cause (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to be declared effective under the Securities Act on or before the Effectiveness DateExchange Offer; (y) keep the Exchange Offer open for at least 30 days 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th day not later than 400 days following the Issue Date (or if such 400th day is not a Business Day, the next succeeding Business Day) (the “Exchange Date”); provided, however, that the Issuers shall not be required to file, commence or consummate such Exchange Offer if all of the Securities held by Holders eligible to participate in such Exchange Offer are Freely Tradable on or before the Exchange Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who that participates in the Exchange Offer Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes Securities acquired in exchange for Registrable Notes Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange NotesSecurities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder has an arrangement or understanding with any Person to participate in the “distribution” distribution (within the meaning of the Securities Act) of the Exchange Notes Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is or has been an “affiliate” (as defined in Rule 405) of the Company Issuers or, if it is an affiliate of the CompanyIssuers, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Special Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange NotesSecurities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes). Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes Securities that are Private Exchange NotesNotes (and the related Guarantees), Exchange Notes Securities as to which Section 2(c)(iv2(c)(3)(B)(ii) is applicable and Exchange Notes Securities held by the Participating Broker-Dealers, and the Company Issuers shall have no further obligation to register Registrable Notes Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Notes Securities as to which clause 2(c)(iv2(c)(3)(B)(ii) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes Securities shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional NotesStatement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes Securities in compliance with the Securities Act. The Issuers shall use their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons (including Participating Broker-Dealers) subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange NotesSecurities; provided, however, that such period shall not be required to exceed 90 days days, or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the “Private Exchange Notes”) of the CompanyIssuers, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall:will
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use its respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after 20 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New YorkYork or in Wilmington, Delaware, which may be the Trustee or an affiliate thereof;
(4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulationsregulations applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and the any Private Exchange, if any, Exchange the Issuers shall:
(1) accept for exchange all Registrable Notes Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and the any Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes Securities so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes Securities shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, If (i1) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii2) the Exchange Offer is not consummated within 360 days of by the Issue Date, Exchange Date and all Securities are not Freely Tradeable prior to such time or (iii3) any Holder so requests in writing to the Company at any time after the consummation of prior to the Exchange Offer Date: (A) the Initial Purchasers request from the Issuers with respect to Notes (including Private Exchange Notes) Registrable Securities held by them that were ineligible are not eligible to participate or be exchanged for Exchange Notes Securities in the Exchange Offer, (B) with respect to any Holder of Registrable Securities, such Holder notifies the Issuers that (i) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, (ii) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer (or to the public without delivering a prospectus and that the Prospectus contained in the case of Private Exchange NotesRegistration Statement is not appropriate or available for such resales by such Holder, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iviii) such Holder is a broker-dealer and holds Registrable Securities acquired directly from the Issuers or one of their affiliates or (C) in the case of any Holder that participates in the Exchange OfferInitial Purchaser, such Holder does Initial Purchaser notifies the Issuers it will not receive Freely Tradable Exchange Notes on the date of the Securities in exchange that may be sold without restriction under the for Registrable Securities Act (other than due solely to the status constituting any portion of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictionsInitial Purchaser’s unsold allotment, then, in the case of each of clauses (i1) to and including through (iv3) of this sentence, then the Issuers shall promptly deliver to the Holders and Trustee with a copy to the Trustee registrar (to deliver to the Holders) written notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3 hereof.
(d) Notwithstanding anything in this Section 2 to the contrary, the requirements to file and the requirements to consummate the Exchange Offer pursuant to this Section 2 shall terminate at such time as all the Securities held by Holders eligible to participate in any such Exchange Offer are Freely Tradable.
Appears in 1 contract
Samples: Registration Rights Agreement (Crestwood Midstream Partners LP)
Exchange Offer. (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation Each of the staff of Company and the SEC, the Issuers shall Guarantors jointly and severally agrees to use commercially reasonable its best efforts to file with the SECSEC as soon as practicable after the Closing, but in no event later than the Filing Date, a Registration Statement documents pertaining to an offer to exchange (the “Exchange Offer Registration Statement”) on an appropriate registration form with respect to a registered offer (the “"Exchange Offer”") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the “Exchange Notes”)Company, guaranteed on a senior basis by the Guarantors, that which are identical in all material respects to the Notes (the "Exchange Notes, except that ") (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, conforms to the requirements necessary for qualification has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective registration statement under the Securities Act and will not contain terms with respect to transfer restrictions. The documents pertaining to the Exchange Offer shall will be filed under the Securities Act on the appropriate form (the "Exchange Registration Statement") and the Exchange Offer will comply with all applicable tender offer rules and regulations under the Exchange Act Act. Each of the Company and other applicable laws. The Issuers shall the Guarantors jointly and severally agrees to use its best efforts to (x) use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 360th 150th day (or, in the event of any extension of the Exchange Offer required by applicable law, the earliest day following any such extension) following the Issue Date. Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) that any Exchange Notes acquired in exchange for Registrable Notes tendered are being received by it will be acquired in the ordinary course of business of the Person receiving such Exchange Notesits business, whether or not such recipient is such Holder itself; (ii) that at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an will have no arrangement or understanding with any Person to participate in the “distribution” (within the meaning of the Securities Act) distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from that such Holder is not an “affiliate” (as defined in Rule 405) affiliate of any of the Company or, or the Guarantors within the meaning of Rule 405 promulgated under the Securities Act or if it is such an affiliate of the Companyaffiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act Act, to the extent applicable and will provide information to be included in that is not acting on behalf of any Person who could not truthfully make the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notesforegoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof appliesheld by Participating Broker-Dealers) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement or exchange notes and related guarantees issuable in respect of Additional Notesthis Agreement.
(b) The Issuers Company and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “"Plan of Distribution,” in the form attached hereto as Exhibit A or as otherwise, reasonably Distribution,"reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “"underwriter” " status of any broker-dealer that is the “beneficial owner” owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “"Participating Broker-Dealer”"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “"Plan of Distribution” " section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with Notes. Each of the Securities Act. The Issuers Company and the Guarantors shall use commercially reasonable its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to such Persons must comply with applicable law such requirements in connection with any resale of order to resell the Exchange Notes; provided, however, provided that such period shall not be required to exceed 90 180 days (or such longer period if extended pursuant to the last paragraph of Section 5 hereof 5) (the “"Applicable Period”"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have and having, or which are reasonably likely to be determined to have, the status of as an unsold allotment in the initial distribution, the Issuers, Company and the Guarantors upon the request of the such Initial PurchasersPurchasers shall, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the such Initial Purchasers, in exchange (the “"Private Exchange”") for such the Notes held by any such HolderInitial Purchasers, a like principal amount of notes (the “Private Exchange Notes”) debt securities of the Company, Company guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on such the Private Exchange Notes. The If possible, the Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if permitted by the CUSIP Service BureauNotes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Issuers Company and the Guarantors shall:
(1i) mail, or cause to be mailed, mail to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) use commercially reasonable efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
(3ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;; and
(4iii) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York City time, on the last Business Day business day on which the Exchange Offer remains shall remain open; and
(5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and or the Private Exchange, if anyas the case may be, the Issuers Company and the Guarantors shall:
(1i) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and or the Private Exchange, if any;
(2ii) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3iii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture, which in all material respects either event will provide that (1) the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture and which, in either case, conforms to (2) the requirements necessary for qualification under the TIA or is exempt from such qualification and shall provide that the Private Exchange Notes shall not will be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall will have the right to vote and consent give consents together on all matters presented to such holders for votes or consents as one class and that none of neither the Exchange Notes, the Private Exchange Notes or nor the Notes will have the right to vote or consent as a separate class on any matter.
(c) If, If (i1) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted prior to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 360 days of the Issue Date, (iii) any Holder so requests in writing to the Company at any time after the consummation of the Exchange Offer with respect to Offer, the Company and the Guarantors or Holders of at least a majority in aggregate principal amount of the Registrable Notes reasonably determine in good faith that (including Private Exchange Notesi) that were ineligible to be exchanged for the Exchange Notes in the Exchange Offer would not, upon receipt, be freely transferable by such Holders which are not affiliates (or in the case of Private Exchange Notes, were not issued in exchange for Notes that are or were eligible to be exchanged in the Exchange Offer) or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under the Securities Act (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies of the Company or the Guarantors without restriction under the Securities Act and without restrictions under applicable state securities laws, (ii) the interests of the Holders under this Agreement would be adversely affected by the consummation of the Exchange Offer or (iii) after conferring with counsel, the SEC is unlikely to permit the commencement of the Exchange Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the Private Exchange, any holder of the Private Exchange Notes so requests or (3) the Exchange Offer is commenced and not consummated within 30 150 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentenceIssue Date, then the Issuers Company and the Guarantors shall promptly deliver to the Holders and the Trustee written notice thereof (the “"Shelf Notice”") and shall file a an Initial Shelf Registration pursuant to Section 3 hereof3. Following the delivery of a Shelf Notice to the Holders of Registrable Notes (in the circumstances contemplated by clauses (1) and (3) of the preceding sentence), the Company and the Guarantors shall not have any further obligation to conduct the Exchange Offer or the Private Exchange under this Section 2.
Appears in 1 contract
Samples: Registration Rights Agreement (MWC Acquisition Sub Inc)
